Citation Nr: 1801102 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-15 818 ) 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, to include as secondary to service-connected wound of the right foot/muscle group X. 3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected wound of the right foot/muscle group X. 4. Entitlement to service connection for a right hip disability, to include as secondary to service-connected wound of the right foot/muscle group X. 5. Entitlement to service connection for a left hip disability, to include as secondary to service-connected wound of the right foot/muscle group X. 6. Entitlement to service connection for a low back disability, to include as secondary to service-connected wound of the right foot/muscle group X. REPRESENTATION Appellant represented by: Stacey Penn Clark, Attorney at Law ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran served on active duty from March 1960 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In an August 2017 letter, the Veteran withdrew his request for a Board hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is related to in-service noise exposure. 2. The evidence is in at least relative equipoise as to whether degenerative joint disease (DJD) of the right knee is caused by service-connected wound of the right foot/muscle group X. 3. The evidence is in at least relative equipoise as to whether DJD of the left knee is caused by service-connected wound of the right foot/muscle group X. 4. The evidence is in at least relative equipoise as to whether DJD of the right hip is caused by service-connected wound of the right foot/muscle group X. 5. The evidence is in at least relative equipoise as to whether DJD of the left hip is caused by service-connected wound of the right foot/muscle group X. 6. The evidence is in at least relative equipoise as to whether degenerative disc disease (DDD) of the lumbar spine is caused by service-connected wound of the right foot/muscle group X. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for DJD of the right knee, secondary to service-connected wound of the right foot/muscle group X, are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for DJD of the left knee, secondary to service-connected wound of the right foot/muscle group X, are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for DJD of the right hip, secondary to service-connected wound of the right foot/muscle group X, are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 5. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for DJD of the left hip, secondary to service-connected wound of the right foot/muscle group X, are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 6. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for DDD of the lumbar spine, secondary to service-connected wound of the right foot/muscle group X, are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to all the issues before the Board, further discussion of the VCAA is not necessary at this time. Merits A. Hearing Loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purpose of applying the laws administered by VA, impaired hearing is considered 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 above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in October 2011. Testing showed left ear hearing loss for VA purposes. Id. Testing in the right ear, however, could not be conducted. It was noted that that the Veteran's right ear hearing could not be conducted because he has a cochlear implant. The Board, however, will concede hearing loss in the right ear (and, in any event, a remand for a new examination is likely to be fruitless as it appears that audiological testing is impossible in the right ear due to the cochlear implant). This concession is supported by the examination report, which notes profound right ear hearing loss in 2007, just before the cochlear implant was installed (as opposed to only severe to profound hearing loss in the left ear). In service, the Veteran's acoustic trauma was conceded due to his military occupational specialty (MOS) of a refrigeration and air conditioning specialist. See March 2014 Statement of the Case. Upon entrance, in March 1960, the only audiometric testing conducted was a whisper test, which showed scores of 15 out of 15 bilaterally. Upon separation, the Veteran reported running ears and ear, nose and throat trouble. It was noted that the Veteran had otitis media at age 13. See November 1964 Report of Medical History. Audiometric testing was conducted. Pure tone thresholds for each ear, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -10 (0) -5 (5) 0 (10) 10 (15) LEFT 5 (20) -10 (0) 5 (15) 10 (20) 20 (25) Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Thus, the November 1964 audiogram provided in the Veteran's service treatment records (STRs) is assumed to reflect ASA standards. Since VA evaluates current hearing loss in ISO-ANSI standards, the units have been converted as shown in the adjoining parentheses above. Regarding nexus, the October 2011 VA examiner opined that it was less likely than not that the Veteran's hearing loss was related to service. As rationale, the examiner stated that service treatment records were silent for complaints of hearing loss. Further, she explained that an Institute of Medicine (IOM) study showed no sufficient scientific basis for the development of delayed-onset hearing loss. Thus, as there was no hearing loss in service, there was no reason to conclude that a relationship exists between service and hearing loss. The Board finds the October 2011 opinion of little, if any, probative value. The examiner did not address the fact that the enlistment whisper test was perfect (i.e., 15 out of 15 bilaterally), but the separation examination showed some decreased hearing acuity. Further, the separation examination showed evidence that at least left ear hearing was not "normal." See Hensley v. Brown, 5 Vet. App. 155, 158 (1993) (noting that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss). Further, the examiner did not comment on the Veteran's statement of experiencing a gradual decline in hearing during service, which has continued to the present. See March 2012 Notice of Disagreement. As such, the Board finds the October 2011 opinion of little, if any, probative value. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (Board charged with assessing the probative value of evidence). In his March 2012 notice of disagreement, the Veteran stated that he experienced decreased hearing and did not complain of such because it was a gradual decline in hearing and seemed normal. He also explained that he has experienced a gradual decline in hearing since service. The Veteran is competent to report such and has no reason to doubt his credibility. The Board notes that at the current juncture, there is no probative medical opinion addressing the etiology of the Veteran's bilateral hearing loss. The Board could remand for a medical opinion. However, remand could be interpreted as a violation of 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination") and Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). The Board finds the evidence is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is related to service. The evidence shows abnormal hearing during service. See Hensley, 5 Vet. App. at 158. Further, the Veteran has reported that he began experiencing decreased hearing during service. This is consistent with the normal whisper test during entrance and the abnormal hearing at separation. Further, the Veteran has credibly stated that he has experienced a gradual decrease in hearing since service. This is evidence of a nexus between hearing loss and service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). B. Other Disabilities Service connection may also be established if the evidence of record shows disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran was afforded a VA examination in October 2011, where the orthopedic disabilities on appeal were examined. There, DJD of the bilateral knees, DJD of the bilateral hips and DDD of the lumbar spine were diagnosed. The October 2011 VA examiner offered opinions that it was less likely than not that any of the diagnosed disabilities were secondary to the Veteran's service-connected wound of the right foot/muscle group X. He offered the same rationale for each disability. He stated that STRs were silent for any lumbar spine, knee or hip problems. Likewise, he stated that review of the current medical literature does not reveal any causal relationship between foot wounds or muscle wounds as an etiology or aggravating factor of DDD of the lumbar spine, DJD of the knees, or DJD of the hips. On the other hand, the Veteran submitted a medical opinion, dated September 2017, from Dr. U.D.F., M.D. He opined that it was at least as likely as not that the Veteran's bilateral knee, bilateral hip and lumbar spine disabilities were the result of his service-connected disabilities. As rationale, he explained the disabilities developed as a result of the Veteran's altered body mechanics because he tried to compensate for his service-connected disability and balance his gait. He further explained that chronic shifting of weight from one side of the body to the other caused the degenerative changes in the Veteran's knees, hips, and back. The Board finds both the VA examiner's opinions and Dr. U.D.F.'s opinions equally probative as both clearly stated an opinion, which was supported by a thorough and cogent rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Thus, the evidence is in at least relative equipoise as to whether the Veteran's bilateral knee, bilateral hip and low back disabilities were caused by his service-connected wound of the right foot/muscle group X. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for DJD of the bilateral knees, DJD of the bilateral hips and DDD of the lumbar spine are warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for DJD of the right knee, secondary to service-connected wound of the right foot/muscle group X, is granted. Service connection for DJD of the left knee, secondary to service-connected wound of the right foot/muscle group X, is granted. Service connection for DJD of the right hip, secondary to service-connected wound of the right foot/muscle group X, is granted. Service connection for DJD of the left hip, secondary to service-connected wound of the right foot/muscle group X, is granted. Service connection for DDD of the lumbar spine, secondary to service-connected wound of the right foot/muscle group X, is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs