Citation Nr: 1237169 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-16 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for a right eardrum disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for vertigo, including as secondary to a right eardrum disorder. 5. Entitlement to service connection for dizziness, including as secondary to a right eardrum disorder. 6. Entitlement to service connection for residuals of a left wrist fracture, including as secondary to dizziness and vertigo. 7. Entitlement to service connection for residuals of a right wrist fracture, including as secondary to dizziness and vertigo. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1975 to May 1997. This appeal to the Board of Veterans' Appeals (Board) is from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. These claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In this case, the Veteran asserts several theories of entitlement. First, he claims his left ear hearing loss and right knee disorder are directly attributable to his military service. The Veteran also claims that his right eardrum disorder, claimed as a ruptured eardrum, pre-existed his military service and was aggravated beyond the natural progression of the disorder as a result of his military service. As for his claims of dizziness and vertigo, the Veteran states they are due to, caused by, or aggravated by his ruptured right eardrum. Similarly, he claims that the residuals of his right and left wrist fractures are due to, caused by, or aggravated by the dizziness and vertigo. Therefore, these four claims are predicated on the theory of secondary service connection. As part of the duty to assist a claimant in developing the facts and evidence concerning a claim, VA must provide him or her with an examination for a medical nexus opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with his or her service or a service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4). When determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). As for his claims for left ear hearing loss and right knee disorder, there is some question as to whether the Veteran currently suffers from diagnosed disabilities. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of the presently claimed disability, there can be no valid claim); Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); cf. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). First, concerning whether he currently has a right knee disorder, the Veteran described "crunching" of the right, which he attributes to heavy lifting from loading and unloading mail trucks and aircraft carriers during his military service in the 1980s. There are no service treatment records or VA treatment records indicating he has a current right knee disorder. Nevertheless, since he is certainly competent to describe the onset of a right knee disorder, and in light of the holding in McLendon, the Veteran should be scheduled for a VA examination to determine whether he has a right knee disorder and, if so, whether it is attributable to his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability, including during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records, but also indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). As for hearing loss, VA regulations establish that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But according to VA standards, impaired hearing only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the September 2008 VA examiner determined the Veteran has a speech recognition score of 94 percent for the left ear. Additionally, his auditory threshold levels in the left ear, in decibels, were 20, 15, 10, 15, and 15, at each of the relevant frequencies. Therefore, he did not meet the requirements of hearing loss in the left ear pursuant to 38 C.F.R. § 3.385. Also of record are private audiogram graphs dated in February 2008, March 2008, and May 2009. Clarification is required as to whether the Veteran has a current left ear hearing loss disability, to include clarification of the private audiograms. See Savage v. Shinseki, 24 Vet.App. 259 (2011); 38 C.F.R. § 4.85. In an opinion provided in June 2009, a VA examiner determined that the Veteran's left ear hearing loss is not related to his military service due to his normal hearing results while in service. In this respect, the examiner noted that the Veteran's service treatment records clearly indicate the existence of recurrent bilateral serous otitis media and repeated complaints concerning his ears, even without any indication of hearing loss in the left ear at that time. Nevertheless, assuming that the Veteran does have a current left ear hearing loss disability, the Board finds that the June 2009 opinion is inadequate in that the VA examiner relied on the lack of in-service hearing loss in denying the claim. The Court has stated that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. Next, concerning the claim of entitlement to service connection for a right ear drum disorder, the Veteran argues that this occurred when he was a child, and, therefore, is a pre-existing injury, which was aggravated by his military service. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In July 2003, VA's General Counsel issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, when a condition is not noted at entrance into service, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The United States Court of Appeals for the Federal Circuit has adopted the General Counsel's position. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The claimant is not required in this circumstance to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. This holding replaced the previous standard under 38 C.F.R. § 3.304(b), which had required that if a condition was not noted at entry but was shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifted to the claimant to show that the condition increased in severity during service. Conversely, if a pre-existing disability is noted upon entry into service, as is the case here, the Veteran cannot bring a claim for service connection for that disability, but he may bring a claim for service-connected aggravation of that disability. In that case, § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). If an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity in service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Here, the report of the Veteran's February 1975 military entrance examination notes scarring on the right tympanic membrane. So the Veteran is not entitled to the presumption of soundness at the start of his service in February 1975 as it relates to his right tympanic membrane. Since this disorder was noted at entrance, it is the Veteran's burden, not VA's, to show a permanent (not temporary or intermittent flare-up) worsening of a disorder associated with the scarring of the right tympanic membrane during or as a result of his service. In other words, he may only bring a claim for aggravation of this pre-existing condition. Wagner, 370 F.3d at 1096; VAOPGCPREC 3-2003. As there has never been an opinion specifically discussing whether there has been a permanent (not temporary or intermittent flare-up) worsening of a disorder associated with the scarring of the right tympanic membrane during or as a result of his service, a VA compensation examination and medical opinion are needed to assist in this matter. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or chronically aggravated by a service-connected disability, and when thus established, this secondary condition is considered a part of the original condition. See 38 C.F.R. § 3.310(a) and (b) (2011). Establishing entitlement to service connection on this alternative secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). See also Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998). As for his claims concerning whether the dizziness and vertigo may be secondarily related to the ruptured right eardrum, if it is service connected, medical comment is also required to determine the nature and etiology of these disorders. So a medical examination and opinion are needed. Finally, the Veteran's treatment records related to his wrist injuries should be obtained, as he stated that he had an accident on August 14, 2008 while cleaning leaves out of a gutter. He stated that as a result of dizziness and vertigo, he fell off a ladder and broke both of his wrists. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's treatment records, to inlcude any emergency room records, related to his wrist injuries when fell off a ladder and broke both of his wrists on August 14, 2008 2. Contact the audiologist from hearing Associates of Warrensburg who conducted the February 2008, March 2008, and May 2009 audiograms. The audiologist must be asked to state: (1) whether he/she is a state-licensed audiologist; (2) whether the speech discrimination result reported was the Maryland CNC controlled speech discrimination test; and (3) whether a puretone audiometry test was conducted. If the answer to all three questions above is yes, the audiologist should be asked to interpret the data reported in graph form in a numerical format. 3. After the above development has been completed, schedule the Veteran for a VA ENT examination. The claims file and a complete copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examination report should indicate that this has been accomplished. Appropriate testing should include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. For the left ear, the examiner should specifically report the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz. (a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed left ear hearing loss had its clinical onset during active service, or is related to any in-service disease, event, or injury, to include conceded noise exposure and/or ear infections. (b) With respect to the scarring of the right tympanic membrane that was noted on the Veteran's entrance examination in February 1975, the examiner should provide an opinion as to whether this disability underwent a permanent increase in severity during service. If so, is it undebatable that the increase in severity was due to the natural progression of the disease? (c) The examiner should also identify any current disorder manifested by vertigo and dizziness. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any disability manifested by vertigo and dizziness is proximately caused by, due to, or aggravated by the Veteran's right ear hearing loss. (d) If it is determined that service connection for left ear hearing loss and/or a right eardrum disorder is warranted, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any disability manifested by vertigo and dizziness is proximately caused by, due to, or aggravated by left ear hearing loss and/or a right eardrum disorder. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Schedule the Veteran for an appropriate VA examination of his right knee. The claims file and a complete copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examination report should indicate that this has been accomplished. All necessary studies and tests, to include x-rays if indicated, should be conducted. The examiner should identify all current right knee disorders found to be present. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed right knee disorder had its clinical onset during active service, or is related to any in-service disease, event, or injury, to include heavy lifting from loading and unloading mail trucks and aircraft carriers. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Next, review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner(s) for completion of the inquiry. 6. Finally, readjudicate the claims on appeal. If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).