Citation Nr: 1331330 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 04-05 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to right knee arthritis, claimed as secondary to service-connected orthopedic disabilities of the left knee and ankle. 3. Entitlement to service connection for left knee limitation of extension. 4. Entitlement to service connection for intervertebral disc syndrome of the lumbar spine based on incapacitating episodes. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his brother ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from November 1967 to November 1969 with service in the Republic of Vietnam from May 1968 to May 1969. The Veteran is in receipt of various medals, including the Vietnam Service Medal with two Bronze Service Stars and the Republic of Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which in pertinent part denied the Veteran's claims for bilateral hearing loss and arthritis of the legs. In November 2009, the Veteran and his brother testified before the undersigned Veterans Law Judge at the Central Office in Washington, DC. A transcript of the hearing is associated with the claims file. In January 2010, October 2011, and December 2012, the Board remanded the remaining issues on appeal, hearing loss, arthritis of the legs, a low back disability, and a left knee disability (in January 2010 and October 2011) to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development. In the December 2012 decision, the Board granted service connection for left ankle, left knee, and left foot disabilities. In a December 2012 rating decision, the AMC effectuated the Board's decision, granting service connection for left knee instability and limitation of left knee flexion, and assigned initial ratings of 20 and 10 percent, respectively, in addition to left ankle and left foot disabilities. With respect to the left knee disabilities, the AMC indicated that the decision represented a full and final determination of the left knee issue on appeal. In a June 2013 rating decision, the AMC, in pertinent part, granted service connection for degenerative disc disease of the lumbar spine and assigned an initial 20 percent rating. Also, in a July 2013 rating decision, the AMC granted service connection for tinnitus and right ear hearing loss. The issue of entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as secondary to medications taken for service-connected orthopedic disabilities, has been raised by the record in a July 2013 statement from the Veteran's representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for right knee arthritis, claimed as secondary to service-connected orthopedic disabilities of the left knee and ankle; service connection for left knee limitation of extension; and service connection for intervertebral disc syndrome based on incapacitating episodes are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Competent and credible medical and lay evidence reflects that the Veteran's left ear hearing loss is the result of excessive noise exposure during active duty service. CONCLUSION OF LAW With resolution of the benefit of the doubt in the Veteran's favor, the criteria for establishing service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In light of the Board's favorable determination regarding the issue of service connection for left ear hearing loss, no further discussion of VCAA compliance is needed at this time. II. General Relevant Laws and Regulations for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a present disability, there must be: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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; see also Hensley v. Brown, 5 Vet. App. 155 (1993). The lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Veteran contends that he has some hearing loss due to being around heavy artillery fire and as a result of his duties as a combat engineer in Vietnam. A January 2013 rating decision granted right ear hearing loss, effective from the date his claim was received on March 21, 2003. During service, the Veteran underwent audiometric examinations at induction and separation. The results are recorded as follows: HERTZ Date Ear 500 1000 2000 3000 4000 November 1967 (Induction) RIGHT -5 -10 5 N/A 10 LEFT 0 0 -5 N/A 5 October 1969 (Separation) RIGHT 0 5 0 N/A 5 LEFT 0 0 5 N/A 5 In corresponding reports of medical history in November 1967 and October 1969, the Veteran denied currently or ever having running hears, ear trouble, or hearing loss. Service records list his military occupational specialty as pioneer. His related civilian occupation was listed as construction worker. A January 2004 private treatment record reflects that the Veteran reported hunting as his hobby. During a July 2005 private neuropsychiatric evaluation, the Veteran described rocket and mortar attacks during service and post-service work history in construction, as a switchman on the railroad, as a truck driver and electrician, and currently as a glazer for windows. A June 2005 VA primary care treatment record reflects the Veteran's report that he had been told that he "can't hear." During a review of systems, he reported ringing in his ears and decreased hearing in the left ear. The assessment included hearing loss/tinnitus. In November 2009, the Veteran testified that he was continuously exposed to traumatic noise from construction work during his duties as a combat engineer in Vietnam. He stated that he "talked really loud" after service and around 2003 someone told him to have his hearing checked. During a November 2011 VA audiological examination, the Veteran reported military noise exposure to artillery, explosives, equipment and vehicles, small arms fire, and grenade launchers. He identified post-service occupational exposure to include working for the railroad for 16 to 18 years without hearing protective devices. Audiometric testing revealed bilateral sensorineural hearing loss for VA compensation purposes. The examiner opined that the results of testing were consistent with noise exposure and other etiologies, such as age, but it was not at least as likely as not that the bilateral hearing loss was caused by or a result of an event in service. Results of a February 2013 VA audiological examination also revealed bilateral hearing loss for VA compensation purposes. The examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service because hearing was normal in all frequencies tested at military entrance and separation. In a July 2013 VA addendum, another VA audiologist reviewed the claims file and opined that the Veteran had a high probability of noise exposure due to his military occupational specialty as a combat engineer and his status as a combat veteran. She explained that a significant threshold shift was indicated at 1000 Hz in the right ear when comparing entrance and exit hearing examinations. She defined a "significant threshold shift" as a "change at a frequency (not average) that is greater than normal measurement variability (10 [decibels] is considered within measurement variability)." She observed that there was no evidence of significant threshold shift in the left ear. She also noted that 3000 and 6000 Hz testing was not conducted at [entrance or] exit, so it was unknown if significant threshold shifts (or hearing loss) occurred at these frequencies in either ear. The audiologist further explained that these frequencies can be the first affected as a result of noise exposure. She emphasized that the type and configuration of the Veteran's current hearing loss was consistent with noise exposure, and he had a positive history of unprotected military, occupational, and recreational noise exposure. Based on this evidence, the audiologist opined that his current bilateral hearing loss was at least as likely as not due to military noise exposure. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran's current left ear hearing loss is related to noise exposure during military service. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The favorable opinion by the July 2013 VA audiologist is persuasive evidence in support of the claim for service connection for left ear hearing loss because it was based on a thorough review of the claims file and supported by an articulated medical rationale that is consistent with the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The audiologist explained that while the 10 degree shift in left ear hearing acuity was within normal testing variability and that testing in the 3000 Hz range was not conducted, the 15 degree shift in right ear hearing acuity was clinically significant and was likely due to the Veteran's military noise exposure. In other words, the audiologist's conclusion that bilateral hearing loss was at least as likely as not due to military noise exposure appears to be based on the Veteran's report of military noise exposure in both ears, current bilateral hearing loss, and clinically significant shift in right ear hearing acuity during service with incomplete testing data in the 3000 Hz range for both ears. Accordingly, service connection for left ear hearing loss is warranted. ORDER Service connection for left ear hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The claim for service connection for right knee arthritis was previously characterized as service connection for arthritis of the legs. The Veteran had claimed arthritis due to traumatic injuries to his left knee, ankle, and foot in service. As noted service connection has been established for left knee disabilities. However, private treatment records associated with the claims file reflect that the Veteran was injured on the job in January 2004 when a crate of glass weighing at least 1600 pounds fell on his right leg. During an evaluation on the date of injury, he denied any significant past medical history that would impact on his present injury. The impression was right knee contusion of the anterior and lateral knee, hematoma, muscle tear, and abrasion of the skin. A right knee x-ray revealed no fracture or soft tissue edema. A March 2004 right knee x-ray revealed minimal early degenerative arthritis consistent with his age. In correspondence received by VA in February 2004, the Veteran asserted that he sustained a right leg injury at work while unloading a truck because he was unable to get out of the way due to his injury from the Army, which caused difficulty moving laterally, when an 1800-pound pallet fell. In a February 2012 VA examination report, the examining physician responded to the Board's October 2011 request for a medical opinion regarding "any leg disability found to be present, to include arthritis" and whether any such disability was caused or aggravated by any service-connected left ankle and/or left knee disability. The examiner opined that the left knee instability and degenerative joint disease and a left ankle disability had their onset during military service. Then, the examiner noted that the Veteran "claims the traumatic civilian right leg injury was unavoidable because of the lack of mobility in the service-connected disabled left leg." In the December 2012 remand, the Board again requested a medical opinion to determine if the Veteran suffers from a current left leg disability, other than the service-connected left knee and ankle arthritis. Specifically, the Board requested an opinion as to "whether it is at least as likely as not that the Veteran's leg condition, diagnosed as arthritis, was caused or aggravated" by his "service-connected left foot, ankle, and/or knee disabilities." A February 2013 VA examiner opined that the Veteran's service-connected left foot, ankle, and/or knee disabilities demonstrate degenerative joint disease, which has permanently worsened these joints beyond the natural progress of the disease. The Board finds that an additional VA examination and medical opinion regarding the claimed right knee arthritis is warranted because the opinion of the February 2012 VA examiner merely restates the Veteran's contention regarding the cause of his January 2004 on-the-job right knee injury without any accompanying medical rationale or discussion of contemporaneous medical evidence. Similarly, the February 2013 VA examination report does not explicitly address the Veteran's contentions regarding his right knee. Therefore, the AMC/RO should arrange for an orthopedic examination to determine whether the Veteran has a right knee disability that was caused or aggravated by service-connected left knee, ankle, or foot disabilities. See 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Prior to arranging for a VA examination, the AMC/RO should request and associate with the claims file ongoing treatment records pertinent to the claim for a right knee disability from the Nashville VA Medical Center (VAMC) dated from July 2011 to the present and from the Mountain Home VAMC dated from April 2013 to the present. In July 2013, the Veteran's representative expressed disagreement on the Veteran's behalf with December 2012 and June 2013 rating decisions issued by the AMC. The December 2012 decision awarded service connection for left knee instability and limitation of flexion. However, the representative asserted that a 40 percent rating is also warranted for left knee extension no later than on VA examination in February 2013. The June 2013 rating decision awarded service connection for degenerative disc disease of the lumbar spine and assigned a 20 percent disability rating. The representative asserts that an April 2012 VA examination supports a 60 percent disability rating for intervertebral disc syndrome based on more than six weeks of incapacitation per year. Since the filing of a notice of disagreement initiates appellate review, these claims must be remanded for the preparation of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2013), are fully complied with and satisfied, including notification of what the evidence must show to substantiate the claim for service connection for a right knee disability on a secondary basis. 2. The AMC/RO should attempt to obtain and associate with the claims file treatment records pertinent to the claim for a right knee disability from the Nashville VAMC dated from July 2011 to the present and from the Mountain Home VAMC dated from April 2013 to the present. 3. Thereafter, the RO should schedule the Veteran for a VA examination to determine whether the Veteran has a current right knee arthritis disability. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. All necessary special studies or tests should be accomplished and the reports associated with the examination report. The examiner should consider the Veteran's contentions that he injured his right leg on the job in January 2004 because he could not move out of the way due to service-connected left knee, ankle, and/or foot disabilities before a crate of glass fell on his right leg. The examiner should also consider contemporaneous private treatment records. Following a review of the claims file and physical examination, the examiner should identify all right knee disorders found on examination. For each right knee disorder found on examination, the examiner should respond to the following questions: a) Indicate whether it is at least as likely as not (a 50 percent or greater probability) that a right knee disorder began in service or is otherwise medically related to military service. b) If a right knee disorder found on examination did not begin in service or is otherwise not medically related to military service, indicate whether any diagnosed right knee disorder is at least as likely as not (a 50 percent or greater probability) caused by the Veteran's service-connected left knee, left ankle, and/or left foot disabilities. c) If not caused by the left knee, ankle, and/or foot disabilities, then the examiner should opine whether any diagnosed right knee disorder is permanently worsened beyond normal progression (aggravated) by the service-connected left knee, ankle, and/or foot disabilities. If the examiner finds any right knee disorder aggravated by left knee, ankle, and/or foot disabilities, he/she should attempt to quantify the degree of aggravation. A complete rationale for all conclusions must be included in the report provided. (Any medical record reviewed and relied on by the examiner must be included in the claims folder). If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AMC/RO should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion with respect to any diagnosed right knee disorder can be obtained). 4. The AMC/RO is requested to prepare and provide the Veteran and his representative with a statement of the case for the issues of entitlement to service connection for left knee limitation of extension and for intervertebral disc syndrome of the lumbar spine based on incapacitating episodes. The Veteran should be informed that he must file a timely and adequate Substantive Appeal in order to perfect an appeal of these issues to the Board. If a timely Substantive Appeal is not filed, the claims should not be certified to the Board. 5. With respect to the Veteran's right knee arthritis, claimed as secondary to service-connected orthopedic disabilities of the left knee and ankle, after completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claim for service connection should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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. 2013). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs