Citation Nr: 18143294 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-15 395 DATE: October 18, 2018 ORDER Service connection for right ear hearing loss is denied. REMANDED Service connection for bilateral foot disabilities, to include plantar fasciitis and pes planus is remanded. Service connection for bilateral knee disabilities is remanded. Service connection for left-sided sciatica is remanded. Service connection for right-sided sciatica is remanded. FINDING OF FACT The Veteran does not have a right ear hearing loss disability as defined for VA purposes. Valid audiogram scores show that the Veteran’s right ear hearing threshold was not above 25 decibels at any frequency tested. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from September 1998 to January 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from October 2015 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Duties to Notify and Assist With respect to the claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection for Right Ear Hearing Loss Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of hearing loss, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, 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. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist. 38 C.F.R. § 4.85. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). On the Veteran’s September 2015 audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 20 25 LEFT 10 10 10 25 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. Because there was no single pure tone threshold at 40 decibels or greater in the Veteran’s right ear, no three pure tone thresholds at 26 decibels or greater in his right ear, and his speech recognition scores in his right ear were greater than 94 percent, the Board cannot, as a matter of law, consider the Veteran’s right ear hearing loss a disability. 38 C.F.R. § 3.385. Without a legally-recognized hearing loss disability (as defined for VA purposes), the Board must deny the claim for service connection for right ear hearing loss. See Brammer, 3 Vet. App. at 225. The Board recognizes that the Veteran submitted a private examination report that reflects a higher level of hearing loss in his right ear than that which is reflected in his September 2015 VA examination. Compare June 2015 Hearing Loss and Tinnitus Disability Benefits Questionnaire by M.G., M.D. with September 2015 Hearing Loss and Tinnitus Disability Benefits Questionnaire by T.C., M.A., Audiologist. However, the private examination appears to have been conducted by a medical doctor and not an audiologist. See June 2015 Disability Benefits Questionnaire by M.G., M.D. (Hearing Loss and Tinnitus). Unfortunately, this means that, by law, these results cannot be used to support a claim for VA disability benefits. See 38 C.F.R. § 4.85. Accordingly, because the preponderance of the evidence is against a finding that the Veteran has right ear hearing loss to the extent that qualifies as a disability within the meaning of the law, the claim for service connection for right ear hearing loss must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Service connection for bilateral foot disabilities, to include plantar fasciitis and pes planus is remanded. The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the claim at this time because the record does not include an opinion that adequately addresses the facts and circumstances presented by the Veteran’s case. In this case, the Veteran submitted a private medical report that shows he was diagnosed with pes planus and plantar fasciitis. See June 2015 Flatfoot (Pes Planus) Disability Benefits Questionnaire. Thereafter, he was afforded a VA examination of his feet. See September Foot Conditions Disability Benefits Questionnaire by A.Q., M.D. However, the examiner at this later appointment did not include the diagnoses of pes planus or plantar fasciitis and did not provide an opinion as to their cause. Id.; see also Medical Opinion by A.Q., M.D. Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, this issue must be remanded to obtain an examination and opinion that addresses the Veteran’s pes planus and plantar fasciitis. Service connection for bilateral knee disabilities is remanded. The Veteran submitted a private medical report that reflects that he was diagnosed with knee pain beginning in 2000. See June 2015 Knee Disability Benefits Questionnaire by M.G., M.D. VA is required to provide an examination when there is insufficient medical evidence to decide the claim, but the record otherwise contains competent evidence of a current disability or recurrent symptoms, evidence of an in-service event, and evidence of an indication of a nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i). Accordingly, this issue must be remanded to obtain an examination and opinion that addresses the Veteran’s bilateral knee disabilities. Service connection for right- and left-sided sciatica is remanded. The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the claim at this time because the relevant VA examination report is internally inconsistent with respect to whether the Veteran shows signs or symptoms of radiculopathy. At the examination, the Veteran reported symptoms of pain, numbness, and tingling going down into his legs, but the examiner noted that there was no radicular pain or other signs or symptoms due to radiculopathy. See September 2015 Back Conditions Disability Benefits Questionnaire by A.Q., M.D. Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, these issues must be remanded to obtain an examination and opinion that adequately addresses the nature and cause of the Veteran’s pain, numbness, and tingling going to his legs. The matters are REMANDED for the following action: 1. Send a letter to the Veteran requesting that he identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim of entitlement to service connection for right and left sided sciatica, bilateral knee disabilities, and bilateral foot conditions. He should be invited to submit this evidence himself or to request that VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the claims file. At least two such efforts should be made unless it is clear from the private provider’s response to the first request that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he MUST be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s foot condition(s), including Veteran’s diagnosed pes planus and plantar fasciitis. Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s foot condition(s) by diagnosis(es). Please provide a complete explanation (rationale) if the diagnoses of pes planus and plantar fasciitis are not given. (b.) If it is determined that the Veteran has pes planus, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that this condition WAS NOT aggravated during service OR that it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in symptoms was due to the natural progress of this disability? (c.) If it is determined that the Veteran has pes planus, is it at least as likely as not (defined as a 50% or better probability) that pes planus of either foot was proximately caused by or aggravated by Veteran’s service-connected right foot metatarsalgia? (d.) For EACH* of the other diagnosed foot conditions(s), is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current foot condition(s) was incurred in active military service? *In answering this question, please DO NOT provide opinions on right foot metatarsalgia (this condition is already service connected) or pes planus (this condition is subject to a different standard). (e.) If it is determined that the Veteran has plantar fasciitis, is it at least as likely as not (defined as a 50% or better probability) that plantar fasciitis of either foot was proximately caused by or aggravated by pes planus OR Veteran’s service-connected right foot metatarsalgia? The examiner is advised that AGGRAVATION is defined as a permanent increase in severity of the disability beyond its natural progression. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the Veteran’s claims folder): * An August 1998 entrance examination reflecting that the Veteran has mild, asymptomatic pes planus. * A September 2001 service examination reflecting that the Veteran has no abnormalities of the foot and a normal arch. * A June 2002 service examination reflecting no abnormalities of the foot and a normal arch. In forming any opinions, the Board emphasizes that the Veteran is qualified to report observable matters (including—but not limited to—what his observable symptoms are, when they began, how severe they are, and how long they have persisted). If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. 3. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s bilateral knee condition(s). Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s knee condition(s) by diagnosis(es). (b.) For EACH* of the diagnosed knee conditions(s), is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current mental health condition(s) was incurred in active military service, to include beginning in service? In forming any opinions, the Board emphasizes that the Veteran is qualified to report observable matters (including—but not limited to—what his observable symptoms are, when they began, how severe they are, and how long they have persisted). If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. 4. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s right- and left-sided sciatica. This should include a peripheral nerves examination. Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s sciatic or sciatica-like condition(s) by diagnosis(es). (b.) For EACH of the diagnosed sciatic or sciatica-like conditions(s), is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current sciatic or sciatica-like condition(s) was incurred in active military service? (c.) For EACH of the diagnosed sciatic or sciatica-like conditions(s), is it at least as likely as not (defined as a 50% or better probability) that the condition(s) was proximately caused by or aggravated by the Veteran’s service-connected lumbosacral strain? The examiner is advised that AGGRAVATION is defined as a permanent increase in severity of the disability beyond its natural progression. In forming any opinions, the Board emphasizes that the Veteran is qualified to report observable matters (including—but not limited to—what his observable symptoms are, when they began, how severe they are, and how long they have persisted). If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). [CONTINUED ON THE NEXT PAGE]   If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Lambert, Associate Counsel