Citation Nr: 1644890 Decision Date: 11/30/16 Archive Date: 12/09/16 DOCKET NO. 12-20 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a right elbow disability, to include as secondary to a service-connected right little finger disability. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the United States Army National Guard from June 1979 to August 1979, June 1980 to July 1980, and November 1990 to August 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2011 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2016, the Veteran presented sworn testimony during a video conference hearing in Montgomery, Alabama, which was chaired by the undersigned. A transcript of that hearing has been associated with the claims file. The issue of entitlement to service connection for migraine headaches has been raised by the record in the Veteran's August 2016 hearing testimony, 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. 38 C.F.R. § 19.9(b) (2015). The issues of service connection for the bilateral knees and right elbow are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran if further action on his part is required. FINDING OF FACT The Veteran's currently diagnosed bilateral hearing loss is at least as likely as not related to active service. CONCLUSION OF LAW Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Veteran's claim for service connection for bilateral hearing loss is granted herein, any error related to the VA's duty to notify and assist is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran claims that his hearing loss is the result of noise exposure in service. An April 2011 VA examination diagnosed him with hearing loss which meets the requirements of a disability for VA purposes. The examiner also noted his inservice noise exposure. However, the examiner was unable to link the Veteran's hearing loss to service because his hearing was within normal limits at discharge. He did not address the apparent decrease in hearing acuity at 2000Hz for the right ear and at 4000Hz for the left ear from the Veteran's first entrance examination to his last separation examination, and whether this may provide the basis for a medical nexus between the Veteran's service and his current hearing loss, notwithstanding the lack of hearing loss for VA purposes at separation. This weakens the probative value of the opinion. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In support of his claim, the Veteran submitted a private medical opinion from an audiologist that linked his hearing loss to his inservice noise exposure. The private audiologist discusses normal hearing for someone the Veteran's age, as well as his inservice noise exposure. Although the private audiologist does not fully address the lack of decrease in hearing acuity at several thresholds from entrance to separation, the Board finds that this opinion is at least as probative as the April 2011 VA opinion. The Board notes that the hearing loss claim could be remanded for a new VA opinion that addresses the Veteran's change in hearing during service. However, as the evidence shows a decrease in hearing acuity in service, the Veteran claims he has experienced decreased hearing since service, he is already service-connected for tinnitus based on inservice noise exposure, and the equally limited probative value of the positive and negative opinions, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran's current bilateral hearing loss is related to his military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). The benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted. REMAND At his August 2016 Board hearing, the Veteran provided credible testimony and written documentation regarding his inservice bilateral knee and right elbow injuries. Despite this evidence of inservice injuries and claimed current disabilities, the Veteran has not been afforded VA examinations and opinions for these claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The claims must be remanded for such. Additionally, the Veteran testified at his hearing that he received VA treatment at the Childersburg Community-Based Outpatient Clinic (COBC). On remand, the AOJ should attempt to obtain any outstanding VA treatment records from this and any other identified VA facility. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records from the Childersburg VA CBOC and any other VA facility identified by the Veteran. All attempts to obtain these records should be documented in the claims file. 2. The Veteran should be scheduled for an appropriate VA examination in order to determine the nature and etiology of his claimed right knee, left knee, and right elbow disabilities. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. * With regard to the right and left knee claims, the examiner should identify any current right and/or left knee disorders, including any that may have resolved during the appeals period. For each such diagnosed disorder, s/he must opine whether it is at least as likely as not (50 percent or greater) that such a disability began in or is related to service. The examiner should presume that the Veteran's report of inservice bilateral knee injuries is credible. * With regard to the right elbow claim, the examiner should identify any current right elbow disorders, including any that may have resolved during the appeals period. For each such diagnosed disorder, s/he must opine whether it is at least as likely as not (50 percent or greater) that such a disability began in or is related to service or was caused or aggravated (made worse) by his service-connected right little finger disability. The examiner should presume that the Veteran's report of an inservice elbow injury is credible. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, they shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions, the Veteran's claims should be readjudicated. If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, all issue(s) properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs