Citation Nr: 1801074 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-23 069 ) 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 frostbite, both big toes. 3. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1977 to April 1981. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from March 2010, October 2010, and February 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2017, a travel board hearing was held before the undersigned. A transcript of that hearing is of record. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND I. Bilateral Hearing Loss For the Veteran's claim of entitlement to service connection for bilateral hearing loss, a remand is required for an addendum opinion that addresses the Veteran's occupational specialty, the Veteran's lay statements, and medical journal articles discussing latent onset of noise-induced hearing loss. The Veteran served as a cannon crewman for three years and nine months. See DD-214. He was in close association with 105 Howitzers and wore minimal ear protection. See August 2017 hearing transcript. The evidence indicates a shift in puretone threshold values during service. The Veteran's April 1977 entrance audiogram contains the following puretone thresholds, in decibels, measured under the ANSI standard: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 LEFT 5 5 10 5 5 A May 1980 in-service audiogram contains the following puretone thresholds, in decibels, also measured under the ANSI standard: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 35 25 LEFT 25 30 25 25 25 The Veteran's February 1981 separation audiogram contains the following puretone thresholds, in decibels, also measured under the ANSI standard: HERTZ 500 1000 2000 3000 4000 RIGHT 10 35 20 20 30 LEFT 25 20 25 25 25 The Veteran's August 2010 VA examination provides for a diagnosis of hearing loss. Puretone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 45 50 55 LEFT 30 35 50 55 50 Speech recognition ability using the Maryland CNC test is 74 percent in the right ear and 64 percent in the left ear. Taken together, for both ears, the August 2010 VA examination indicates auditory thresholds in excess of 40 decibels at 2000 Hz, 3000 Hz, and 4000 Hz, auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz greater than 26 decibels, and Maryland CNC Test scores less than 94 percent. These values constitute a current diagnosis of bilateral hearing loss. See 38 C.F.R. § 3.385. In an August 2010 VA medical opinion, a VA examiner opines that the Veteran's hearing loss is less likely than not related to service. Since the hearing levels contained in the February 1981 exit examination are within normal limits, the examiner states that the in-service hearing loss was only temporary. Also, the Veteran was treated for wax buildup secondary to ear aches during service, which the examiner suggests could also affect in-service hearing loss. For these reasons, the examiner concludes that the Veteran's current hearing loss is not related to service. There are three problems with this medical opinion. First, it does not specifically address the potential impact of in-service acoustic trauma, including exposure to noise from 105 Howitzers, on hearing loss. Second, it does not address recent medical literature supporting delayed or latent onset of noise-induced hearing loss (cited below). Third, the opinion contains testimony that the Veteran "was 'jabbed' in his right ear during an ear cleaning procedure in the military and that his right ear has been affect since then," but the examiner does not address this incident as a potential cause of the Veteran's hearing loss. The August 2010 VA medical opinion is therefore based on insufficient bases and is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). An addendum opinion is necessary. II. Frostbite For the Veteran's claim of entitlement to service connection for frostbite, a remand is required for an addendum opinion that addresses the Veteran's lay statements as contained in the August 2017 hearing transcript. A May 2011 VA examiner opines that the Veteran's frostbite residuals are less likely than not related to service because "[a]lthough there is documentation that [the Veteran] was stationed in Alaska, there is no evidence to suggest evaluation [or] treatment of any cold injury." The conclusion of a medical opinion cannot be premised on the lack of evidence in service treatment records while ignoring lay statements regarding symptomology. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). In this case, the May 2011 VA medical opinion does not address the Veteran's consistent contentions that he contracted frostbite after being exposed to an extended period of freezing temperature during a training exercise in Alaska. See August 2017 hearing transcript; November 2010 lay statement. An addendum opinion is necessary. III. Right Knee Disorder For the Veteran's claim for an increased rating for degenerative arthritis of the right knee, a remand is necessary to provide the Veteran a VA examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Specifically, 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. Correia, 28 Vet. App. at 160. As is relevant here, Correia further states that knees are "undoubtedly weight-bearing." Id. at 168 n.7. The Veteran was last afforded a VA examination for his right knee in December 2011. The December 2011 examination does not include the required range of motion findings as delineated in Correia. As such, a new VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected right knee disability, to include consideration of range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing situations. Also during the December 2011 examination, the Veteran stated that he does not experience flare-ups. VA treatment records to December 7, 2011, have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from December 8, 2011, to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder all records of the Veteran's VA treatment from December 8, 2011, to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinion: Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed bilateral hearing loss was incurred in the Veteran's service, including but not limited to exposure to acoustic trauma associated with the firing of Howitzer 105 guns and being jabbed in the right ear during a wax cleaning procedure. In reaching these opinions, the examiner should address the shift in puretone thresholds in the Veteran's in-service audiograms and the Veteran's testimony regarding in-service exposure to acoustic trauma. For purposes of this opinion, the examiner is to assume that the Veteran experienced acoustic trauma while wearing inadequate ear protection around 105 Howitzers. The examiner should also address the following recent medical literature supporting delayed or latent onset of noise-induced hearing loss: Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth, Kujawa SG, and Liberman MC (2006), J Neurosci. 2006 Feb 15; 26(7): 2115-23; Adding insult to injury: cochlear nerve degeneration after "temporary" noise-induced hearing loss, Kujawa SG, Liberman MC (2009), J Neurosci. 2009 Nov 11; 29 (45):14077-85; Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift, Lin HW, Furman AC, Kujawa SG, and Liberman MC (2011), JARO 12:605-16; and Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates, Furman AC, Kujawa SG, and Libermann MC (2013), J. Neurophysiol. 110, 577-86. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinions: a. Whether the Veteran has any current or previously-diagnosed frostbite residuals; and b. Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed frostbite residuals were incurred in the Veteran's service, including but not limited to exposure to an extended period of freezing temperature during a training exercise in Alaska. In reaching these opinions, the examiner should consider the Veteran's lay statements as contained in the August 2017 hearing transcript and November 2010 lay statement, specifically that he experienced frostbite after exposure to an extended period of freezing temperature during a training exercise in Alaska. The examiner should also address the Veteran's current symptoms as reported in those records. For purposes of writing this opinion, the examiner is to assume that the Veteran's report of exposure to an extended period of freezing temperatures during a training exercise in Alaska is credible. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and severity of the Veteran's service-connected degenerative arthritis of the right knee. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of the opposite undamaged joint. 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 the basis for this decision. The examiner should determine whether the Veteran's degenerative arthritis of the right knee is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also request the Veteran identify the extent of his functional loss during a flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran's range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 5. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. 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 (2012). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).