Citation Nr: 1800675 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-03 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a psychiatric disability. 5. Entitlement to service connection for a respiratory disability (claimed as breathing condition). 6. Entitlement to service connection for sleep apnea syndrome (claimed as sleep condition). 7. Entitlement to service connection for headaches. 8. Entitlement to service connection for a dental condition. 9. Entitlement to a rating higher than 30 percent for left knee chronic ligament laxity, status post medial meniscus tear. 10. Entitlement to a rating higher than 10 percent for left knee osteoarthritis. 11. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from October 1978 to September 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The claim for entitlement to service connection for a left ear hearing loss disability is addressed in the DECISION below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT A left ear hearing loss disability is as likely as not attributable to service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for a left ear hearing loss disability are met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as sensorineural hearing loss, may be presumed to be service-connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran appeals the denial of service connection for a left ear hearing loss disability. He reports noise exposure in service from working in the engine room onboard the U.S.S. Lexington. He denies noise exposure prior to entry into service and after separation. The June 2014 VA examination disclosed that the Veteran has a left ear hearing loss disability as defined by VA regulations. The VA examiner, however, could not provide a medical opinion regarding the etiology of the Veteran's hearing loss disability without resorting to speculation. In July 2017, however, Dr. T stated that an audiogram in January 1980 showed 15 and 20 db threshold shifts in the left ear for frequencies 3000 and 4000, respectively. Given that it was less than two years into service, he opined that it was more likely than not that the Veteran had incurred hearing loss as a result of his duty experience and that over the next two years more injury would be expected. Since there was evidence of an audio shift of 20 db occurring two years into service in the same frequencies, Dr. T opined that the left ear hearing loss as compared to the right ear was more likely than not a result of military acoustic trauma. Favorable evidence has been submitted showing a connection between the Veteran's service and his current left ear hearing loss disability. The credible lay statements of record in conjunction with the medical opinion of Dr. T place the evidence at least in equipoise. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, resolving reasonable doubt in his favor, service connection for a left ear hearing loss disability is granted. ORDER Entitlement to service connection for a left ear hearing loss disability is granted. REMAND The Veteran appeals the denial of service connection for tinnitus. In relation to his claim, he was afforded a VA examination in June 2014. It was noted that there was no exit examination for review and no complaints of hearing or tinnitus was documented as such the VA examiner found that an opinion could not be rendered without resorting to speculation. As the VA examiner was unable to render an etiology opinion regarding the Veteran's tinnitus, the Board requested a VHA opinion on this matter. Although a VHA opinion was rendered in July 2017, the examiner did not provide an opinion as to whether the Veteran has tinnitus that is related to service. On remand, an opinion on this matter should be obtained. The Veteran also appeals the denial of service connection for a respiratory disability. The Veteran's October 1978 entrance examination disclosed he had seasonal hay fever. Service treatment records show complaints of sore throat and cough. He was also shown to have an upper respiratory infection and viral syndrome in August 1982. As the Veteran has not been afforded a VA examination in relation to his claim, the Board finds that a remand is warranted to determine if has a respiratory condition that is related to service, and/or whether he has a disability that preexisted service and, if so, was worsened by service. With regard to his claims for service connection for a psychiatric disability, headaches and sleep apnea, the Board notes that the further development on these claims are also needed. In this regard, service treatment records show complaints of headaches in June and November 1979. Following a May 2016 assessment, psychologist H.H.G opined that the Veteran's chronic left knee disability was more likely than not causing his depressive disorder due to another medical condition and prevents him maintaining substantial gainful employment. In July 2016, Dr. Skaggs opined that the Veteran's depressive disorder has as likely as not aided in the development of and permanent aggravation of his obstructive sleep apnea. He further opined that the Veteran's headaches were caused by his depressive disorder due to another medical condition with depressed features. The Veteran has not been afforded a VA examination in relation to these claims. In light of the evidence summarized above, the Board finds that a remand is warranted to afford the Veteran such an examination. The Veteran also appeals the denial of a rating higher than 30 percent for left knee chronic ligament laxity, status post medial meniscus tear and entitlement to a rating higher than 10 percent for left knee osteoarthritis. In relation to his claim, the Veteran was last examined by VA in June 2014. Since the last VA examination, the Board notes that the Court in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id. At present, the medical evidence of record to include the June 2014 VA examination does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. As such, a new VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected left knee disability. In order to comply with the Correia case, it is requested that the VA examiner test the range of motion for both knees in active motion, passive motion, weight-bearing, and nonweight-bearing situations. Furthermore, in a May 2016 assessment, psychologist H.H.G opined that the Veteran's chronic left knee disability was more likely than not causing his depressive disorder due to another medical condition and prevents him from maintaining substantial gainful employment. As there is an indication that the Veteran's service-connected disabilities prevent him from maintaining substantially gainful employment, the Board finds that a TDIU claim is considered to have been raised by the record and thus is a component of the increased rating claim on appeal before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Accordingly, the Board has jurisdiction over this issue. An opinion has not been obtained to determine what impact, if any, the Veteran's service-connected disabilities either singly or cumulatively have on his ability to maintain employment. As such, a remand for such an opinion is warranted. Lastly, the Board notes that there are potentially relevant records that are missing from the claims file. In this regard, the record shows that VA outpatient records since 1998 (with the exception of records from the Portland VA Medical Center from March 18, 2014 through March 24, 2015) have not been obtained. On remand, these records and any ongoing VA and private treatment records should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the claims folder any outstanding VA treatment records since 1998 to include the June 2014 VA examinations. 2. Contact the Veteran and request that he provide or authorize the release of any outstanding private treatment records that pertain to treatment for his disabilities. 3. Obtain an addendum opinion addressing the etiology of the Veteran's tinnitus. Access to the electronic claims files must be made available to the examiner for review. The examiner is asked to provide an opinion as whether it is at least as likely as not (i.e., probability of 50 percent) that tinnitus is attributable to service or any incident in service, OR caused or aggravated by service-connected left ear hearing loss. For purposes of the opinion, the Veteran should be considered a reliable historian. The rationale for all opinions expressed must be provided. If any required opinion cannot be provided, the examiner should explain why. In particular, if an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. If it is determined that an opinion cannot be entered without additional examination, such an examination must be scheduled in accordance with applicable procedures. 4. Schedule the Veteran for a VA examination to address the nature and etiology of any current respiratory disorders. Access to the electronic claims files must be made available to the examiner for review. Providing that a disability is found, the examiner must state whether the disability clearly and unmistakably preexisted the appellant's period of active duty service and if so whether the preexisting disability clearly and unmistakably was not aggravated beyond its natural progression by service. If the respiratory disability is not found to have been preexisting, the examiner must provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent) that any currently present respiratory disability is attributable to service or any incident in service. 5. Schedule the Veteran for a VA psychiatric examination to address the nature and etiology of any current psychiatric disorders. The examiner is to be provided access to VBMS. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. For each psychiatric disorder, diagnosed during the examination and/or in the record, the examiner must opine whether it at least as likely as not (50 percent probability or more) that any diagnosed psychiatric disorder is attributable to service. Additionally, for each diagnosed acquired psychiatric disability in the record, opine whether it is at least as likely as not (that is, a 50 percent probability or greater) that such acquired psychiatric disability was caused or aggravated (permanently increased in severity beyond the natural progress of the disorder) by the Veteran's service-connected left knee disability. In so doing, please comment upon the above-referenced May 2016 opinion from H.H.G (suggesting that the Veteran's chronic left knee disability was more likely than not causing his depressive disorder) and the supporting medical literature associated with the opinion. A complete, well-reasoned rationale must be provided for all opinions offered. The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. 6. Schedule the Veteran for a VA examination to address the nature and etiology of his headaches. The examiner is to be provided access to VBMS. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must opine whether it at least as likely as not (50 percent probability or more) that any diagnosed headache disorder is attributable to service. A complete, well-reasoned rationale must be provided for all opinions offered. The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. 7. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected left knee disability. Access to VBMS must be made available to the examiner for review. In accordance with the latest worksheets for rating the knees, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. 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. The VA examiner should provide a complete rationale for any opinions provided. 8. Obtain a VA opinion to determine the impact the Veteran's service-connected disabilities either singly or cumulatively - have on his ability to obtain or retain employment. All findings should be reported in detail and all functional impairment caused by the service-connected disorders should be detailed. A complete rationale for all opinions should be provided. 9. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal. For the increased rating claim, the AOJ should consider the propriety of separate ratings under all potentially applicable diagnostic codes for the left knee. If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs