Citation Nr: 1313491 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-47 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 3. Entitlement to service connection for bilateral hearing loss disability. 4. Entitlement to service connection for tinnitus. 5. Entitlement to an increased rating for postoperative residuals of a left sinus tarsi with degenerative arthritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to January 1964, and from April 1964 to June 1970. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a May 2010 rating decision of the VA Regional Office in Providence, Rhode Island that declined to reopen the claims of entitlement to direct service connection for right and left knee disabilities, and denied entitlement to service connection for a bilateral hearing loss disability and tinnitus. That rating decision also denied entitlement to an evaluation in excess of 10 percent for post operative residuals of a left sinus tarsi with degenerative arthritis. A March 2012 supplemental statement of the case announced the denial of service connection for bilateral knee disorders secondary to a low back disability. Following a review of the record, the issues whether new and material evidence has been submitted to reopen claims of entitlement to service connection for right and left knee disorders under any theory of entitlement are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Noise exposure is consistent with the circumstances of the Veteran's service. 2. Hearing loss was first reported many years after discharge from service. 3. The competent evidence of record shows that the Veteran has bilateral conductive hearing loss that is not related to in-service noise exposure. 4. Ringing in the ears was first reported many years after discharge from service; there is competent evidence of record that the Veteran does not have tinnitus that is related to noise exposure in service. 5. Post operative residuals of a left sinus tarsi with degenerative arthritis is manifested by a marked limitation of ankle motion, but not by ankylosis. CONCLUSIONS OF LAW 1. A bilateral hearing loss was not incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by service.38 U.S.C.A. §§ 1110 1131 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for a 20 percent evaluation for left sinus tarsi with degenerative changes are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in January 2010 and February 2012 of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and affording VA examinations. The Board finds that these examinations are adequate to render a determination as to these issues on appeal. The Veteran was scheduled for a hearing before a Member of the Board but canceled his appearance. The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claims are ready to be considered on the merits. Pertinent Law and Regulations - Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases, such as a sensorineural hearing loss, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. 1. Service connection for bilateral hearing loss and tinnitus. Factual background The Veteran's extensive service treatment records do not reflect any complaints or treatment pertaining to hearing impairment, or tinnitus (i.e., ringing in the ears). He was afforded VA examinations in June and October 1971, September 1976, and January 1977 where no complaints or findings of defective hearing or tinnitus were recorded. Similarly, VA outpatient records dated between 1981 and 1986 did not refer to any ear complaints. The Veteran first indicated that he had hearing loss on VA Form 21-2545 dated in July 1987. His hearing was not evaluated at that time. VA outpatient records dated in May 2005 indicate that he was seen for a constant pulsating tinnitus in the left ear as well as a sensation of constant fullness. Subjective tinnitus was added to his problem list. The appellant was afforded audiology consultation in June 2005 where it was noted that he had difficulty hearing his wife as well as positive tinnitus. Tinnitus was described as a constant pulsing in the left ear and intermittent ringing for up to one minute. A history of 11 years in the Marines "teaching on live fire range" with some ear protection available was noted. He also related that he had employment as a mechanic for 20 years, as well as two years with the postal service. The audiogram was interpreted as showing bilateral, mainly conductive, hearing loss, and early otosclerosis. In September 2005, a VA outpatient provider recorded that work-up for pulsatile tinnitus did not disclose evidence of pseudotumor cerebri or left carotid obstruction. The Veteran was told by the ear, nose and throat surgeon to return in one year for hearing loss that was not great enough to warrant surgery. The examiner found that the appellant suffered from conductive hearing losses in both ears, and a family history of congenital deafness in his maternal uncle was noted. The impressions were pulsatile tinnitus in recumbent position and bilateral conductive hearing loss. Upon return to the clinic in September 2006, the Veteran related that he had had pulsatile tinnitus in the left ear for greater than five years. The impressions were pulsatile tinnitus and bilateral conductive hearing loss. The Veteran underwent a VA audiology examination in January 2010 and a comprehensive ear disease examination in March 2010. The claims folder was reviewed and clinical findings dating from service were delineated. The appellant provided history of hearing loss since 1964 and recalled being in front of a 175 Howitzer and incoming fire. He said that his leg was in a cast at the time and he could not run, and that he lay down as guns went off over his head. He believed that this was when hearing loss began. Other military noise exposure was reported to include guerilla warfare training, as a military policeman with rifles and pistols, grenades, mortars, and machine guns, on 'top secret' missions where he was exposed to the 'constant volley of fire', small arms ammunition, 'using blanks and live fire', and M16s firing, etc. He related that as a weapons instructor, he had had set up 40-50 TNT/C4 charges daily for at least a year, and was only issued cotton for hearing protection. The Veteran stated that he had had only minimal occupational and recreational noise exposure since service. He indicated that he had had gradual hearing loss over the years and had pulsatile tinnitus in the left ear several times a year. Following the March 2010 ear disease examination, the examiner opined that hearing loss was less likely than not caused by or a result of military noise exposure. The rationale for this opinion was that there was no evidence that the Veteran reported hearing loss while on active duty, and that a hearing test in 2005 revealed mixed hearing loss in both ears. It was found that the most likely diagnosis would be otosclerosis, which was a medical condition that caused a conductive hearing loss in one or both ears. The examiner stated that otosclerosis was not caused by exposure to loud noises. The examiner explained that loud noise exposure caused a sensorineural hearing loss, usually in the higher frequencies, and that although the Veteran was exposed to loud noises in the military, his pattern of hearing loss was not consistent with exposure to loud noises. The examiner emphasized that tinnitus was not caused by or a result of military noise exposure. It was noted that the Veteran had reported unilateral pulsatile tinnitus since approximately 1999, and that he had had extensive medical evaluations with no definitive cause identified for his symptoms. The examiner stated that pulsatile tinnitus was not associated with hearing loss or exposure to loud noises, and that the high-pitched tinnitus he heard a few times a year was also not consistent with loud noise exposure. Legal Analysis The Veteran asserts that he has a hearing loss and tinnitus as the result of extensive noise exposure during active duty as a Marine. His service personnel records show that he served in combat in Vietnam as an infantry unit leader. As such, excessive noise exposure is found to be consistent with the circumstances of the Veteran's service. See 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012). However, this does not by itself provide for a grant of service connection. Rather, the evidence must demonstrate that current bilateral hearing loss and tinnitus are related to such service. After reviewing the evidence pertaining to the claims in its entirety, the Board concludes that service connection for bilateral hearing loss and tinnitus are not warranted for reasons discussed below. The Veteran clearly has bilateral hearing loss within the meaning of 38 C.F.R. § 3.385, the clinical standard by which this disability may be objectively demonstrated for VA disability purposes. Tinnitus has also been diagnosed. The Board finds, however, that despite inservice noise exposure his service treatment records are not indicative of hearing impairment. There were no complaints, references or findings of hearing loss or ringing of the ears. Further, in the year immediately after service and thereafter, the Veteran was afforded several VA examinations and listed a number of complaints and disorders from which he suffered. Significantly, the Veteran did not include complaints regarding any hearing loss until 1987, approximately 17 years after separation from service. The evidence further indicates that complaints pertaining to tinnitus were not shown until 1999, almost three decades after active duty. The Veteran has been afforded VA audiometric and ear disease examinations. Those examinations included a review of the record, and they yielded the clinical opinion that neither hearing loss nor tinnitus was consistent with noise exposure. It was found that the Veteran had a conductive hearing loss and not sensorineural hearing loss associated with noise exposure. The examiner opined that conductive hearing loss was less likely than not related to reported acoustic trauma in service. The examiner noted that the appellant had undergone an extensive workup for ringing in the ears without a conclusive etiology, but unequivocally stated that pulsatile tinnitus was not related to noise exposure in service. These opinions constitute highly probative negative evidence against the claims. Therefore, the defect in this case is a lack of probative evidence of a nexus to service of both hearing loss and tinnitus. The Board has carefully considered the appellant's lay statements and history as to the onset of hearing loss and tinnitus in service that continued thereafter. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (2007). A layman is competent to report that he notices hearing loss as such comes to him through the senses. Layno v. Brown, 6 Vet.App. 465, 470 (1994). The Board does not dispute the Veteran's account of noise exposure during active service. The Board does not dispute the claim that the Veteran had difficulty hearing after serving in combat. However, to the extent that there may be a vague assertion of continuity of symptomatology since active duty, his assertions are less probative than the clinical evidence showing no documentation of hearing loss or tinnitus for many years after service discharge. Further, the appellant's lay assertions that his hearing loss is related to service is of minimal probative value when weighed against the more probative opinions of skilled VA clinical professionals. Such factors convincingly weigh against a finding that current hearing impairment and tinnitus are related to service. Evidence of a prolonged period without medical complaint and the amount of time that has elapsed since military service can be considered as evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this instance, the Veteran's assertions of causation are less probative than the contemporaneous records and the VA opinions. See Buchanan v. Nicholson, 451 F.3d 1331 (2006). The more probative evidence preponderates against finding that the disabilities are related to service, to include the credible report of noise exposure. The preponderance of the evidence is against the claims, and service connection for bilateral hearing loss and tinnitus must be denied. See 38 C.F.R. § 5107(b). 3. Increased rating for left ankle disability. Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2012). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life and is based, as far as practicable, on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2012). Historically, service connection for postoperative residuals of a left sinus tarsi (ankle) was granted by an April 1970 rating decision. The Veteran has been in receipt of a 10 percent disability evaluation under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5171 since that time. Hyphenated diagnostic codes are used when a rating requires use of an additional rating criteria to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.71a. (2012). Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271 state that a 10 percent evaluation is warranted for moderate limitation of ankle motion. A 20 percent evaluation is awarded for marked limitation of motion. Id. Under 38 C.F.R. § 4.71, Plate II, normal range of motion for the ankle is 0-20 degrees of dorsiflexion and 0-45 degrees of plantar flexion. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet.App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet.App 7 (1996). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Factual Background The Veteran most recently filed a claim for an increased rating for left ankle disability in November 2009. The evidence in this regard includes a November 2009 VA outpatient treatment report indicating that the Veteran did not want any left ankle surgery. Rather, he was only interested in obtaining new elastic ankle braces. On physical examination, he had normal gait and no limp. Ankle motion and strength were normal. An impression of a weak left ankle from old ankle sprain was recorded. At a January 2010 VA examination the appellant was observed to walk with a significant limp but had good posture and no pelvic tilt. He transferred from the chair to the examining table without any difficulty and removed an ankle brace. He related that this was advised by a physician and helped him with stability. The appellant complained of considerable weakness and left ankle instability after prolonged standing. It was noted that he was not employed and that activities of daily living were not affected. Examination of the ankle disclosed no swelling, palpable fluid or evidence of tenderness. Dorsiflexion was from zero to 10 degrees when performed four times. Dorsiflexion was limited by obvious tension in the Achilles tendon. Plantar flexion was zero to 45 degrees four times. There was no evidence of pain, weakness, fatigue or lack of endurance in dorsiflexion. There was good valgus and varus angulation, and good strength and resistance to dorsiflexion and plantar flexion. The examiner stated that there was no increased pain on repetitive movements and no history of flare-ups. Following examination the diagnoses were limited motion on dorsiflexion of the left ankle, mild to moderate functional impairment of the left ankle, and status post surgery of drainage sinus of the ankle. At a November 2011 VA examination the appellant reiterated that he required an ankle brace. He reported taking Oxycodone for pain. He said that the left ankle hurt, swelled and turned out frequently. Left ankle plantar flexion was to 35 degrees with evidence of painful motion at 35 degrees. Plantar dorsiflexion (extension) was to 10 degrees with evidence of painful motion at 10 degrees. The Veteran lost five degrees of dorsiflexion after repetitive testing. It was noted that he did not have any functional loss or impairment of the left ankle. The examiner indicated that there was evidence of less movement than normal, pain on movement, swelling, and instability of station. There was localized tenderness on the left. He had strength of 2/5 on plantar flexion and dorsiflexion. There was evidence of laxity on anterior drawer and talar tilt testing. The appellant did not have ankylosis or painful scarring. X-ray disclosed degenerative arthritis but no soft tissue swelling. No fracture/dislocation was seen in the left ankle. The examiner stated that the Veteran's left ankle affected his ability to work as a heavy equipment operator and that he was retired. Legal Analysis The evidence with respect to the left ankle discloses that the appellant retains plantar flexion to at least 35 degree and dorsiflexion to 10 degrees. Such findings on the whole are productive of no more than moderate limitation of ankle motion for which a 10 percent disability evaluation is appropriate under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Significantly, however, the appellant's pain is noted to additionally cause left ankle weakness, fatigue, swelling and instability. Accordingly, the Board will resolve reasonable doubt and assign a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271. To assign a rating higher than 20 percent, however, the evidence must show left ankle ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2012). Given that the appellant retains some limited motion in each plane of ankle movement he does not, by definition, suffer from left ankle ankylosis. Hence, an evaluation in excess of 20 percent is not in order. There is no evidence that the Veteran's left ankle disability picture is exceptional when compared to other Veterans similarly situated. There is no evidence that his left ankle disorder has necessitated frequent hospitalization or caused marked interference with employment at any time during the appeal period. The Board thus finds that there is no evidence that warrants referral for extraschedular consideration. See Thun v. Peake, 22 Vet.App. 1111 (2008). ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a 20 percent rating for post operative residuals of a left sinus tarsi is granted subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran claims entitlement to service connection for right and left knee disorders. The record reveals, however, that VA denied entitlement to service connection for bilateral knee disorders in an October 1986 rating decision. As the Veteran did not perfect an appeal to that decision, that rating decision is final. 38 U.S.C.A. § 7105 (West 2002). While the Board acknowledges that the appellant now claims entitlement to service connection under a new theory of entitlement, i.e., secondary service connection, new and material evidence is still necessary to reopen a claim for the same benefit asserted under a different theory. The mere fact that the Veteran has alleged different theories of entitlement does not obviate the need to have new and material evidence to reopen his claim. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Significantly, however, while the evidence of record may allow for some theories of entitlement to service connection to be addressed at this time, the Court has repeatedly admonished VA regarding the undesirable specter of piecemeal litigation. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). (the "Court will [not] review BVA decisions in a piecemeal fashion"). Hence, the claims to reopen the issues of entitlement to service connection for right and left knee disorders under any theory requires further development. Accordingly, the Board may not address the claims to reopen until all pertinent development has been completed. In this regard, the provisions of 38 C.F.R. § 3.159 (2012) do not require that the appellant be afforded a VA examination until new and material evidence has been submitted. Notably, however, once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) In this case, the RO's instructions prior to the March 2012 VA examination only requested that an opinion be rendered as to whether bilateral knee disability was related to the Veteran's service-connected lumbar spine. The examiner responded to this question to some extent. The Board finds, however, that both the instructions and the VA examination were inadequate. This is because there was no inquiry as to whether bilateral knee disability might also be secondary or aggravated by the appellant's service connected left ankle disability. Additionally, the March 2012 examiner did not address whether any knee disability was aggravated by the service-connected lumbar spine. Finally, only a cursory rationale was provided to support the opinion that the knee disorders were not secondary to the low back. As such, the examination report is inadequate. The case must thus be remanded for another orthopedic examination that responds to the cited deficiencies in the evidence. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA orthopedic examination by an appropriate physician. The examiner must be provided access to the claims folder, Virtual VA and a copy of this remand. All indicated tests and studies should be performed and clinical findings must be reported in detail. Following that examination the examiner must state whether it is at least as likely as not that either a left or a right knee disorder is caused by or is permanently aggravated by any service-connected disorder, to include any service connected lumbar and/or left ankle pathology. If aggravation is found, the examiner must render an opinion addressing the extent of any aggravation and provide a baseline prior to the aggravation. The examiner must provide detailed rationale for the opinion and conclusions reached. 2. After undertaking any further development deemed appropriate, re-adjudicate the issues on appeal. If a benefit is not granted, provide the appellant and his representative a supplemental statement of the case and afford an opportunity to respond before the case is returned to the Board. The appellant 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). This claim 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. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs