Citation Nr: 1757024 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 15-20 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right knee disability as secondary to service-connected left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse, J.J. ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from August 1984 to June 1987. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Indianapolis, Indiana Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for bilateral hearing loss and for a right knee condition. In May 2017, the Veteran and his wife testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge. A transcript of this hearing is of record. At the hearing, the undersigned granted a request to hold the case in abeyance 60 days for the submission of additional evidence. 38 C.F.R. § 20.709. In June 2017, the Veteran submitted additional medical evidence. The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving doubt in favor of the Veteran, his right knee disability has been medically related to his service-connected left ankle disability CONCLUSION OF LAW The Veteran's right knee disability is proximately due to his service-connected left ankle disability. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, given the favorable action taken below no further analysis of the development of this claim is necessary. II. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). III. Factual Background and Analysis The Veteran has contended that his right knee disability is related to his service-connected left ankle disability. The Board initially notes that service connection has been granted for residuals, fracture, left ankle, effective August 25, 2003. With regard to a current disability, the Board notes that the competent medical evidence of record shows that the Veteran does have a current right knee disability of chondrocalcinosis with degenerative changes, as shown by x-rays in 2011. What is needed in this case is competent medical evidence linking the Veteran's right knee disability to the service-connected disability. To that end, there is competent medical evidence both for and against such a link. The competent evidence against such a link includes the September 2015 VA examination report, in which the examiner concluded that it would be only with resort to mere speculation to opine whether or not either of the veteran's current bilateral knee degenerative joint disease was caused or aggravated to any degree by his service-connected left ankle or military service. For rationale, the examiner noted that the Veteran's service medical records were silent for any knee injury, symptom, treatment, or diagnoses, and that the current medical literature did not support a cause and effect relationship between ipsilateral or contralateral joint disease not incurred in the same traumatic event or from an altered gait mechanic of the severity and longevity of that documented in this Veteran. The examiner concluded that there was no current objective evidence that either of the Veteran's current bilateral knee degenerative joint disease was caused or aggravated to any degree by his service-connected left ankle or military service. The examiner noted that the Veteran had advised that a number of his private physicians, including orthopedic surgeons, had expressed their opinion that his left ankle did indeed cause disease in his knees, however the examiner indicated this was not found on that day's review, but, if located, would require reassessment of the above opinion. The competent evidence which supports a link between the Veteran's right knee disability and his service-connected left ankle disability includes a document dated in June 2017, in which a private family physician, Dr. F., reviewed the Veteran's service records and post-service treatment records and opined that the Veteran's right knee joint deterioration and pain, CPPD (calcium pyrophosphate deposition) right knee, and arthritis, were most likely caused by or a result of the service-connected left ankle injury. For rationale, Dr. F. noted that the deterioration of both the right and left knee joints was attributed to the weight shift and gait change due to the loss in range of motion of service-connected left ankle injury. The examiner also noted there was arthritis in service-connected left ankle, also in the left knee and right knee as well as arthritis and CPPD evidence in all related joints. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Board, after having carefully reviewed the record, and weighing the evidence both in support of and against the claim and resolving any reasonable doubt in favor of the Veteran, finds that the competent evidence is in relative equipoise as to whether the Veteran's right knee condition is related to his service-connected left ankle disability. Thus, the appeal for entitlement to service connection for a right knee disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for a right knee disability is granted. REMAND The Veteran contends his hearing loss is related to his excessive noise exposure in service. The record reflects that his exposure to excessive noise trauma in service has essentially been conceded, based on his military occupational specialty (MOS) of armor crewman. In that regard, by September 2015 rating decision, the RO granted service connection for tinnitus, in large part based on his exposure to excessive noise in service. In the September 2015 supplemental statement of the case (SSOC), however, the RO denied service connection for bilateral hearing loss, based on the VA audiological evaluation in February 2015, which did not show hearing loss disability pursuant to 38 C.F.R. § 3.385. 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 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. The record reflects that, despite the Veteran's contentions, there has been no competent medical evidence showing that he has current hearing loss disability, in either ear, as prescribed by VA standards. 38 C.F.R. § 3.385. At the hearing in May 2017, the Veteran testified that there was no ongoing treatment for his hearing loss, but that they were "trying to get the pain level down" and he had "noticed the changes" he can hear, and that it was just like there were earplugs in his ears and there was muffled hearing and the tinnitus was constant. He also testified that there was "a lot of stuff that's been done verbally that hasn't been put down on paper" and that "doctors were saying things and ... not writing things down". Thereafter, the record was held open for 60 days in order for the Veteran to submit additional evidence. In June 2017, the Veteran submitted a medical opinion from Dr. F., again linking his bilateral hearing loss to "continuous exposure to excessive loud noises in confined spaces during assignment as armor crewman". Although an associated clinical note also dated in June 2017 shows that the Veteran reported having hearing loss, there were no new audiological test results submitted; thus, there is still no competent medical evidence of records showing he has current hearing loss disability, in either ear, as prescribed by VA standards. 38 C.F.R. § 3.385. In light of the foregoing, the record suggests, but it is unclear if the Veteran's hearing loss has increased since his last VA audiological evaluation in 2015. According, he should be scheduled for another VA examination, to include audiometric testing, to assess the current severity of his hearing loss. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his bilateral hearing loss. The claims folder should be made available to the examiner for review in connection with the examination. All appropriate testing, to include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test, should be conducted. If bilateral hearing loss is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veterans current hearing loss disability is related to his in-service noise exposure. 2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and be given an opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs