Citation Nr: 1754544 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-28 548A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome. 4. Entitlement to service connection for a right hip disorder, including as secondary to service-connected right knee patellofemoral pain syndrome. 5. Entitlement to service connection for chronic otitis media. 6. Entitlement to a total disability rating due to individual umemployability by reason of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2010 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The April 2010 rating decision, in pertinent part, granted service connection for a right knee condition (right patellofemoral pain syndrome), assigning an initial 10 percent rating effective March 19, 2009. This rating decision also denied service connection for a right hip disorder and chronic otitis media. The May 2013 rating decision denied service connection for bilateral hearing loss and tinnitus. The Veteran testified at a hearing before the undersigned in December 2016. A transcript is of record. The issue of entitlement to TDIU was raised at the December 2016 Board hearing in conjunction with the increased rating claim. Accordingly, the Board has jurisdiction over that issue. Rice v. Shinseki, 22 Vet. App. 447 (2009). Moreover, the Board left the record open for 30 days for the Veteran to submit additional evidence. Shortly thereafter, the Veteran submitted additional medical evidence relating to the claims on appeal. The issues of entitlement to an initial rating in excess of 10 percent for a right knee condition, entitlement to service connection for hearing loss and tinnitus, as well as the claim for TDIU, are addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his osteoarthritis of the right hip was caused by his service-connected right knee condition. 2. At the December 2016 Board hearing, the Veteran withdrew his claim for service connection for otitis media. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for osteoarthritis of the right hip, as secondary to a service-connected right knee condition, are met. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 U.S.C. §§ 3.102, 3.310 (2017). 2. The criteria for withdrawal of the appeal of the claim for entitlement to service connection for otitis media are met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 U.S.C. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Right Hip Disorder The Veteran believes that his right hip disorder was caused or aggravated by his service-connected right knee disorder. In order to establish entitlement to service connection a secondary basis, there must be (1) evidence confirming the Veteran has the claimed disability; (2) evidence of a service-connected disability; and (3) evidence establishing a causation between the service-connected disability and the claimed disability. Depending on the specific condition being claimed, medical evidence is generally, though not always, required to associate the condition being claimed with a service-connected disability. Wallin v. West, 11 Vet. App. 509 (1998); Velez v. West, 11 Vet. App. 148 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). Resolving all doubt in the Veteran's favor, the Board finds that service connection is warranted for the right hip disorder. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The pertinent evidence of record includes private medical treatment records showing that the Veteran has been diagnosed with osteoarthritis of the right hip. See Private medical treatment records from the Certified Medical Group, Inc. dated November 2010. Additionally, in a December 2008 private medical opinion letter, Dr. E.N.S., the Veteran's physician, stated that he had treated the Veteran's right knee condition for over 10 years and because of that condition, it had created severe pain to his right hip. More recently, in a December 2016 private medical opinion letter, Dr. B.N.S. also opined that the Veteran's service-connected right knee condition had caused problems with his right hip. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the right hip disorder was caused by the service-connected right knee condition, and secondary service connection for osteoarthritis of the right hip is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). Otitis Media An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 U.S.C. § 20.204 (2017). Here, at the December 2016 Board hearing, the Veteran withdrew this appeal regarding the claim for service connection for otitis media, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed. ORDER Entitlement to service connection for osteoarthritis of the right hip, as secondary due to the service-connected right knee condition, is granted. The claim of entitlement to service connection for otitis media is dismissed. REMAND Certain range of motion testing should be conducted whenever possible in cases of joint disabilities. Specifically, range of motion studies should be performed that test active and passive range of motion and in weight-bearing and nonweight-bearing, with comparison to an normal contralateral joint if possible. 38 C.F.R. § 4.59 (2017); Correia v. McDonald,28 Vet. App. 158 (2016). After reviewing the VA examinations of record for the Veteran's service-connected right knee condition, the Board finds that they are incomplete and require additional range of motion testing. Moreover, the medical evidence of record suggests that it had increased in severity. See December 2016 private medical letter from Dr. B.N.S. Therefore, this claim must be remanded for another VA examination. Regarding the Veteran's claims for service connection for tinnitus and hearing loss, the record shows that he has been evaluated on several occasions. A September 2010 private audiological examination from Dr. D.J.S. notes the Veteran's history of ear infections and a motorcycle accident in June 2010. The clinician diagnosed the Veteran with mild to moderate sensorineural hearing loss in the right ear and mild sloping to moderately severe mixed hearing loss in the left ear. The speech recognition scores were 92 percent in the right ear and 88 percent in the left ear. This examination, however, is inadequate because there the speech recognition scores were not determined using the Maryland CNC Speech Test. Additionally, the clinician did not provide an opinion as to the etiology of the Veteran's hearing loss. On the other hand, a February 2011 VA examination report reflects that the Veteran was diagnosed with mild to moderate sensorineural hearing loss bilaterally, even though the reported thresholds in the right ear did not rise to the level of a ratable disability for VA purposes. (Impaired hearing only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies of 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 Speech Test are less than 94 percent. 38 C.F.R. § 3.385.) Further, the examiner opined that the Veteran's hearing loss and tinnitus were not related to active duty because the Veteran's service treatment records showed that he had normal hearing at the time of his discharge. Under governing caselaw, the absence of a hearing loss in service is not fatal to a claim of service connection for hearing loss (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)). Therefore, the opinion offered is inadequate, and a remand for an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination or opinion that is adequate for rating purposes). Additionally, since the TDIU claim is inextricably intertwined with the claims for increased rating and service connection, it is also being remanded. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran appropriate VCAA notice concerning the claim of entitlement to a TDIU. Also, provide him an opportunity to submit a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Make arrangements to obtain the Veteran's complete treatment records from the Pacific Spine & Pain Center (Drs. Eric Sorenson and Brandon Sorenson), dated since January 2010; and from Dr. Lancy Allyn, dated since March 2009. 3. Make arrangements to obtain the Veteran's complete treatment records from Dr. Daniel Schlund at the Hanford ENT. 4. Make arrangements to obtain the Veteran's complete treatment records from the VA treatment facility in Fresno, CA, dated since March 2009. See VA Form 21-4138, dated August 14, 2009. 5. Thereafter, upon receipt of all additional records, schedule an appropriate VA compensation examination to assist in determining the nature and current level of severity of the Veteran's service-connected right knee disability. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation, i.e. X-rays, MRI studies, and/or range of motion studies in degrees using a goniometer. All pertinent symptomatology should be reported in detail. In particular, the examiner should test the range of motion using a goniometer in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joint in question and any paired joint(s). See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and any additional relevant evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion (flexion and extension) of the Veteran's right knee (i.e., the extent of the Veteran's pain-free motion), to specifically include if his pain was not ameliorated by his medication regimen. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, whether favorable or unfavorable, and citing the objective medical findings leading to the conclusions. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. In any event, the type of test performed (i.e. active or passive, weight-bearing or nonweight-bearing), must be specified. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 6. Schedule the Veteran for the appropriate VA examination to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed hearing loss and/or tinnitus had its clinical onset during active service or is related to any incident of service, to include his acknowledged exposure as an aircraft mechanic to noise from jet engines and turbo fan engines, as well as his repeated ear infections in service. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached. 7. Schedule the Veteran for an appropriate VA examination to address the TDIU claim. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected right knee patellofemoral pain syndrome, degenerative joint disease of the right and left ankles, and degenerative disc disease of the lumbar spine, on his employment. The examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected disabilities. The examiner must suggest the type or types of employment, if any, in which the Veteran would be capable of engaging with his service-connected disabilities, given his skill set and educational background. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached. 8. Then, after completing any other development that may be indicated, readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (West 2014). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs