Citation Nr: 1611182 Decision Date: 03/18/16 Archive Date: 03/23/16 DOCKET NO. 11-17 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1984 and from July 1984 to September 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans' Law Judge at a March 2015 videoconference hearing, and a transcript of this hearing is of record. In April 2015, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional service treatment records. The action specified in the April 2015 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes that the issues of entitlement to service connection for a left ankle disability and entitlement to service connection for a left knee disability were previously characterized as applications to reopen; however, since these claims were last decided, additional relevant service records have been associated with the Veteran's claims folder that were not previously considered. Accordingly, pursuant to 38 C.F.R. § 3.156(c), VA must reconsider these claims on the merits without regard to whether new and material evidence has been submitted. See 38 C.F.R. § 3.156(c)(2015). The issues of entitlement to service connection for a left ankle and a left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not meet the criteria for a hearing loss disability in either ear. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2015). A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2015). For 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, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran served as a construction equipment repairer and special purpose vehicle and equipment mechanic, and he reported prolonged noise exposure from heavy equipment. He is considered competent to relate a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2). The Veteran was afforded VA audiological examinations in May 2008 and September 2015. At the May 2008 examination, puretone auditory thresholds at 500, 1,000, 2,000, 3,000, and 4,000 Hertz (Hz) were 15, 15, 15, 15, and 20 decibels in the right ear and 15, 20, 15, 25, and 35 decibels in the left ear. Speech recognition score using the Maryland CNC test were 100% bilaterally. At the September 2015 examination, puretone auditory thresholds at 500, 1,000, 2,000, 3,000, and 4,000 Hertz (Hz) were 15, 20, 25, 25, and 25 decibels in the right ear and 15, 15, 15, 25, and 35 decibels in the left ear. Speech recognition score using the Maryland CNC test were 98% bilaterally. Based on the above evidence, while the Veteran has abnormal hearing bilaterally, he has not met the criteria for a hearing loss disability in either ear during the period on appeal. As the criteria of 38 C.F.R. § 3.385 have not been met, entitlement to service connection for bilateral hearing loss must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2015). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2015). Here, the Veteran was provided with the relevant notice and information prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at a Travel Board hearing. The hearing was adequate as the Veterans' Law Judge who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND The Veteran is also seeking entitlement to service connection for left ankle and left knee disabilities. Left Ankle Disability The Veteran is seeking entitlement to service connection for a left ankle disability, which he has contended is due to the stress of playing soccer during his active military service. The Veteran's service treatment records, including a June 1991 separation examination, are negative for any complaints of or treatment for a left ankle disability, although they do show that in December 1990, the Veteran injured his left foot playing soccer. He was diagnosed with an acute foot sprain. There are no further complaints of left foot pain of record. However, at his hearing, the Veteran credibly testified that he experienced left ankle problems throughout service, which he self-treated. Post-service, there are no medical records available prior to 2008, when the Veteran began receiving treatment from VA. These outpatient treatment records are negative for any complaints of or treatment for a left ankle disability. In June 2010, the Veteran was afforded a VA examination of his right ankle. While the examiner was focused primarily on the Veteran's right ankle, he also noted that the Veteran had weakness of the left peroneal tendon, which he speculated could be due to poor effort by the Veteran, but the exact etiology was never conclusively determined. It does not appear that any x-rays of the left ankle were ordered, as the only radiographic evidence discussed by the examiner relates to the right ankle. On remand, a VA examiner is asked to clarify whether the Veteran has any current disability of the left ankle, and, if so, whether it is at least as likely as not related to the Veteran's active military service. Left Knee The Veteran is also seeking entitlement to service connection for a left knee disability. Service treatment records show that at his June 1991 separation physical, the Veteran reported a history of left knee pain in November 1990 secondary to strenuous physical activity which had resolved. No disability of the knee or lower extremity was noted at the Veteran's separation from service. Post-service, VA outpatient treatment records reflect that the Veteran was treated in 2013 for bilateral knee pain, left greater than right, as well as a left tibial stress fracture. An April 2013 MRI notes osteoarthrosis and a medial meniscus tear of the left knee. The etiology of this left knee disability is unclear. Accordingly, on remand, the Veteran should be afforded a VA examination to determine whether his current left knee disability is related to an injury in service or to the cumulative effects of the Veteran's physical activities during active duty. Accordingly, the case is REMANDED for the following action: 1. Associate any current VA outpatient treatment records with the Veteran's claims folder. 2. Once this is done, the RO should schedule the Veteran for a VA examination of his left ankle condition. The examiner should identify any current disability or disabilities of the left ankle and note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's left ankle disability had onset in service or was caused or permanently aggravated by the Veteran's active military service. The examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, to include the Veteran's testimony that experienced left ankle problems in service. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 3. The RO should also schedule the Veteran for a VA examination of his left knee condition. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's left knee disability had onset in service or was caused or permanently aggravated by the Veteran's active military service. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 4. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. 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 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs