Citation Nr: 18147803 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 08-30 665 DATE: November 6, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT The Veteran does not have a current diagnosis for bilateral hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.303(a), 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty and active duty for training (ACDUTRA) in the U.S. Marine Corps and Air Force between December 1981 and March 1986 and December 1996 to April 1997 with additional periods of reserve service. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regarding hearing loss, 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 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran asserts that he has hearing impairment due to his in-service duties as an aircraft mechanic. However, the record does not refelct a current diagnosis for bilateral hearing loss commensurate with VA requirements. The appeal was remanded in October 2016 because the Veteran had indicated symptoms of hearing loss. Following remand, the Vetean was afforded a VA audio examianiton in May 2018. The May 2018 audio VA examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 20 20 LEFT 10 5 15 25 25 Maryland CNC speech discrimination scores were 96 percent for the right and left ears. The VA examiner indicated a diagnosis of normal hearing for each ear. The results of the May 2018 audio exam do not meet the criteria set forth in 38 C.F.R. § 3.385 for establishing a diagnosis of hearing loss for VA purposes. A current diagnosis is a cornerstone of a service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, lacking evidence of a current diagnosis, service connection cannot be established, and the claim must be denied. REASONS FOR REMAND Entitlement to service connection for a right knee disability is remanded. The Veteran asserts that his current right knee disabilities are related to wear and tear during service, such as routinely crawling into tight spaces as an aircraft mechanic. The Veteran has been afforded VA examiantions for his right knee. The Veteran also submitted an August 2017 Disability Benefits Questionnaire (DBQ) for Knee Conditions completed by Dr. P., his private examiner. However, the only medical opinion of record regarding the Veteran’s right knee conditions is that provided by the June 2018 VA examiner. Having reviewed the June 2018 VA opinion, the Board finds that an addendum opinion is necessary. The June 2018 VA examiner stated that the Veteran’s civilian employment was in the Federal Civil Service with the Navy Defense Department as an aircraft mechanic from 1986 to 1993 “when the base was closed.” The examiner also stated that this would have been the Veteran’s civilian job while he served in the Marine Corps Reserves and that he would have likely performed the same active duty military service. The examiner did not provide further explanation of this statement. To the extent that the VA examiner may be suggesting that the Veteran’s current right knee pathology is linked or more likely linked to his civilian occupation, the rationale is not sufficient. The VA examiner noted that the Veteran performed the same duties on active duty and during civilian occupation. However, the examiner did not explain why the duties from the Veteran’s civilian employement are more likely related to his current right knee disabilities as opposed to being related to those same duties performed on active duty. The VA examiner also did not consider the Veteran’s lay statements that his current right knee disabilities are related to constantly crawling into tight spaces during service. Additionally, the June 2018 VA examiner reviewed the DBQ completed by the private examiner. The VA examiner noted Dr. P.’s statements that the Veteran’s right knee was also injured from a lot of running and physical training. The VA examiner essentially responded that service treatment records do not reflect right knee complaint, injury or treatment. The VA examiner noted that there are also no profiles or LODs for the Veteran’s right knee. In this regard, the VA examiner’s conclusion is improperly predicated on a lack of documentation in the medical record. See Buchannan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The VA examiner did not address or counter the assertion that running and physical training in service could have led to the Veteran’s current right knee pathology. The VA examiner also noted the requirements of service connection for ACDUTRA, i.e. that the injury occurred during a period of ACDUTRA. However, the Board notes that the Veteran also had active duty service. As such, on remand, the opinion offered should not be limited to the scope of service connection criteria for ACDUTRA. The VA examiner also opined that the Veteran would not have been able to perform the duties of service with a pre-existing right knee condition. The examiner also explained that a chronic right knee disability did not manifest during service or within a year of discharge from service. While the VA examiner addressed a number of theories of service connection, the overall opinion does not contain a rationale as to direct service connection. The VA examiner did not provide a rationale as to whether the Veteran’s current right knee disabilities were incurred during or are otherwise related to his service. As discussed, to the extent that the VA examiner may have linked the Veteran’s current right knee conditions to his civilian employment, that opinion was not supported by a rationale. As also discussed, the VA examiner also did not address lay statements concerning an in-service incurrence. As such, remand is necessary for an addendum opinion. The Board also notes that following the June 2018 VA opinion, the Veteran submitted a number of medical articles regarding right knee pathology. As the appeal is being remanded, the reviewing examiner is asked to address these articles. The matter is REMANDED for the following action: 1. Return the claims file, to include a copy of this remand, to the June 2018 VA examiner for an addendum opinion concerning the nature and etiology of the Veteran’s right knee disabilities. If the examiner who drafted the June 2018 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. All opinions provided must be accompanied by a rationale. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current right knee disabilities (not limited to chronic disabilities) were incurred in or are otherwise related to his active service. Importantly, the examiner must account for the Veteran’s credible reports that he routinely crawled into tight spaces during his service as an aircraft mechanic as well as statements regarding running and physical training. 2. After completing the above actions, readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter 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 (West 2012). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel