Citation Nr: 18148109 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 13-28 765 DATE: November 6, 2018 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to service connection for chondromalacia of the left knee, to include as secondary service-connected periostitis of the right lateral distal tibia (also referred to as right ankle condition), is remanded. Entitlement to service connection for chondromalacia of the right knee, to include as secondary service-connected periostitis of the right lateral distal tibia (also referred to as right ankle condition), is remanded. Entitlement to service connection for restless leg syndrome of the right leg is remanded. Entitlement to service connection for restless leg syndrome of the left leg is remanded. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety, is remanded. Entitlement to an initial compensable rating for periostitis of the right distal tibia, also referred to as right ankle condition, is remanded. Entitlement to an increased initial rating for bilateral hearing loss is remanded. FINDING OF FACT The probative evidence of record shows the Veteran’s right ear hearing loss is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1997 to January 2001. The Veteran testified before the Board at a June 2018 video conference hearing. Service Connection 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 service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show 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 claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Right Ear Hearing Loss The Veteran contends that his right ear hearing loss is related to his active duty service. 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, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Pursuant to 38 C.F.R. § 3.385 (a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Here, the medical evidence reflects the Veteran has a hearing loss disability in his right ear for VA purposes. In June 2013, a VA examination was conducted. On this audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 30 25 20 25 15 In addition, speech audiometry revealed speech recognition ability of 92 percent in the right ear. As the Veteran had speech recognition ability of less than 94 percent, he has right ear hearing loss for VA purposes. The Veteran’s service personnel records show that his military occupational specialty was that of machine gunner. The Board finds that the evidence establishes in-service noise exposure, as exposure to loud noise is consistent with the circumstances of the Veteran’s service. The June 2013 VA examiner opined that the Veteran’s right ear hearing loss was at least as likely as not related to service, noting the Veteran’s in-service noise exposure. The Board finds this opinion to be highly probative, as the examiner based it on a review of the Veteran’s medical records and an examination, and provided a rationale for the opinion. Additionally, there is no competent contrary opinion of record. Accordingly, the Board resolves reasonable doubt in favor of the Veteran and finds that service connection for right ear hearing loss is granted. REASONS FOR REMAND Although the Board sincerely regrets further delay, another remand is necessary to afford the Veteran every possible consideration. 1. Chondromalacia of the Right and Left Knee The Veteran contends that chondromalacia of the knees, also referred to bilateral knee condition, is related to his active duty service, to include as due to or aggravated by his service-connected periostitis right tibia condition. In October 2010, the Veteran received a VA examination. The examiner found there was insufficient evidence that the Veteran’s bilateral knee condition that was diagnosed 5 years after service was secondary to his active duty. The examiner rationalized that he would have to resort to mere speculation to suggest the Veteran’s bilateral knee chondromalacia was secondary to or aggravated by service. The Board finds the October 2010 VA opinion is inadequate to fairly adjudicate the Veteran’s claim for service connection. Although the VA examiner opined that there was insufficient evidence showing the Veteran’s bilateral knee condition was secondary to his service and an opinion would be resorting to mere speculation, the examiner did not provide an opinion or consider whether the Veteran’s bilateral knee condition is due to or aggravated by his service-connected periostitis right ankle condition. Moreover, at the Veteran’s June 2018 hearing, he provided additional details regarding the wear and tear on his knees during service, and these lay statements should be considered in a new opinion. Therefore, a remand is required in order to obtain a new opinion addressing the above. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Restless Leg Syndrome of the Right and Left Leg The Veteran contends that his restless leg syndrome of the right and left leg is related to his active duty service. The Board finds that the Veteran has not been afforded a VA examination for the claims on appeal. VA’s duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2017). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the medical evidence of record shows the Veteran has been diagnosed with restless leg syndrome in the right and left leg. Further, during the Veteran’s June 2018 hearing, the Veteran reported that his restless leg syndrome started around the time of his service-connected tremors of the bilateral upper extremity. The Board finds this suggests his restless leg syndrome may be related to his service-connected disability. Additionally, the Veteran’s service treatment records (STRs) show the Veteran complained of right leg pain for two weeks in February 1998. Therefore, the Board finds that a remand is required in order to obtain a medical examination with an opinion addressing the nature and etiologies of the claimed condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Psychiatric Disorder The Veteran contends that he currently suffers from a psychiatric disorder that is related to his active duty service. In December 2009, the Veteran received a VA examination. The examiner opined that the Veteran did not meet the DSM-IV criteria for a PTSD diagnosis. However, the Board finds the December 2009 VA opinion is inadequate to fairly adjudicate the Veteran’s claim for service connection. Although the examiner found the Veteran did not have a current PTSD diagnosis, VA treatment records show the Veteran has been seen and treated for anxiety. It appears the examiner did not address any other psychiatric conditions that may be present and only focused on whether there was a diagnosis of PTSD. Moreover, the Board notes that the DSM-V applies to applications for benefits that were received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. See 80 Fed. Reg. 14, 308 (March 19, 2015). In this case, the Veteran’s claim for service connection for an acquired psychiatric disorder was pending before the AOD after August 4, 2014, as it was not certified to the Board until March 2015. Therefore, any assessment of potential psychiatric diagnoses must be made utilizing the DSM-V criteria. Accordingly, the Board finds that a remand is required in order to obtain a medical examination with an opinion addressing the nature and etiologies of all and any claimed conditions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Increased Rating for Bilateral Hearing Loss and Periostitis-Right Ankle Condition The Veteran contends that his hearing loss and periostitis of the right distal tibia (right ankle) have gotten worse. As an initial matter, the Board notes that the issue of hearing loss has been recharacterized as an increased initial rating for bilateral hearing loss, given that service connection for right ear hearing loss has been granted in the above decision. During the Veteran’s June 2018 hearing, the Veteran stated that his right ankle disability pain has gotten worse. He stated the pain affects his range of motion and it is worse when there is any pressure on the foot, to include when standing. The Veteran reported that half the day he elevates his foot to relieve pain. The Veteran also reported that his condition causes him to stumble occasionally. Regarding the Veteran’s bilateral hearing loss, the Veteran reported that it has been awhile since he was last tested. He stated he was provided hearing aids which have helped, but without them, it is very hard to hear, especially high-pitched noises and occasionally making out some words. Although the Veteran stated his hearing without aids was about the same, he also stated that it was hard to explain his hearing condition without the hearing aids. He further stated it is hard to hear especially from a distance. The Board notes that the Veteran’s last ankle examination was in October 2011, and his last hearing examination was in June 2013. Additionally, there are no current records describing the severity of the Veteran’s conditions. As such, because it has been 7 years since the Veteran’s last ankle examination and over 5 years since his hearing examination, as well as the Veteran reporting worsening symptoms, the Board finds that a remand is required in order to retrieve any additional treatment records and to obtain new medical examinations to determine the current severity of the Veteran’s right ankle condition and bilateral hearing loss. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran’s claims. 2. After all outstanding records have been associated with the file, return the claims file to the VA examiner who provided the October 2010 opinion on the Veteran’s right and left knee conditions. The record and a copy of this Remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the October 2010 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine as to the following: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral knee condition is due to his service-connected right ankle condition. b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral knee condition is aggravated by his service-connected right ankle condition. “Aggravation” is defined as any worsening beyond the natural progression of the disability. c) If the Veteran’s bilateral knee condition is NOT due to or aggravated by his service-connected right ankle condition, please opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral knee condition had its onset during, or is otherwise related to, his active duty service. In offering any opinion, the examiner must consider the full record, to include the June 2018 hearing testimony regarding in-service incurrence, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 3. Then, schedule the Veteran for a VA examination to determine the etiology of the Veteran’s bilateral restless leg condition. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine as to the following: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral restless leg condition is due to his service-connected tremors of the bilateral upper extremities. b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral restless leg condition is aggravated by his service-connected tremors of the bilateral upper extremities. “Aggravation” is defined as any worsening beyond the natural progression of the disability. c) If the Veteran’s bilateral restless leg condition is NOT due to or aggravated by his service-connected tremors of the bilateral upper extremities, please opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral restless leg condition had its onset during, or is otherwise related to, his active duty service, to include his February 1998 complaint for right leg pain. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 4. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any psychiatric disability. The record and a copy of this Remand must be made available to the examiner. The examiner should state all psychiatric disabilities that are present and utilize the DSM-V criteria. For each disability, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during, or is otherwise related to, his active duty service, to include the Veteran’s lay statements regarding his stressor. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 5. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his bilateral hearing loss. The record and a copy of this Remand must be made available to the examiner. The examiner should perform all necessary tests and studies, and all pertinent symptoms and clinical findings should be reported in detail. 6. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his right ankle disability. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran’s lay statements regarding his current symptoms, the examiner should identify any findings related to the Veteran’s periostitis right ankle condition and fully describe the current extent and severity of those symptoms. The examiner should discuss all findings in terms of the Schedule of Ratings for Musculoskeletal System, specifically Diagnostic Codes 5022 for Periostitis and 5271 for Ankle Limitation. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. The examiner should further determine whether any ankle disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran for each disability. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding symptoms and the opinion should note that consideration. A clearly stated rationale must be provided for any opinion offered. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel