Citation Nr: 18149977 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 15-02 728 DATE: November 15, 2018 ORDER Service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for right knee mild degenerative joint disease is remanded. FINDINGS OF FACT The Veteran is shown to have a hearing loss disability within one year from his discharge from military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to August 1998 and from December 2001 to July 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss (an organic disease of the nervous system), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA 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. The failure to meet these criteria at the time of a Veteran’s separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant “may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service.” Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see 38 C.F.R. § 3.303(d); Heuer v. Brown, 7 Vet. App. 379, 384 (1995). The threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley, at 157; 38 C.F.R. § 3.385. A review of the Veteran’s June 1998 separation examination demonstrates the following audiometric data was obtained at that time: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 0 LEFT 10 10 0 0 15 Within one year of discharge from service, the Veteran underwent another audiological examination in May 1999; the following audiometric was obtained at that time: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 15 55 LEFT 15 10 0 5 60 Based on the foregoing evidence, it is clear that the Veteran had a hearing loss disability under 38 C.F.R. § 3.385 in May 1999. Thus, although the Veteran did not have a hearing loss disability that manifested during military service, such is shown to have manifested within one year of discharge therefrom. Accordingly, service connection for bilateral hearing loss is warranted in this case on a presumptive basis at this time. 38 C.F.R. §§ 3.307, 3.309, 3.385. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND With respect to his right knee claim, the Veteran was diagnosed with rheumatoid arthritis in November 2011. The Veteran underwent a VA examination of his right knee in June 2013, at which time the examiner noted that he had three in-service incidents of right knee injury. The examiner also noted that the Veteran was diagnosed with rheumatoid arthritis in 2011. The examiner opined that the mild degenerative narrowing shown on the Veteran’s x-ray was consistent with natural aging and rheumatoid arthritis, and therefore determined that the Veteran’s right knee mild degenerative joint disease was less likely than not incurred in military service. The Veteran submitted a February 2015 letter from his private physician, Dr. C.B.B., who indicated that he had treated the Veteran for the last 10 years for his knees; he indicated that the Veteran has been seen for continued complaints of persistent pain and effusion during that time; he indicated that he reviewed the Veteran’s service treatment records, which noted multiple visits for both knees between 1985 and 1998, which “may very well be related to his rheumatologic process.” The Board reflects that this medical opinion is inadequate, as it is speculative. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992) (doctor’s letter stating probability in terms of “may or may not” was speculative). However, the Board also finds the June 2013 VA examiner’s medical opinion is inadequate, as he does not address whether the Veteran’s rheumatoid arthritis, which he related his right knee symptomatology to, began in or was otherwise the result of military service, to include the noted right knee injuries therein. Thus, a remand is necessary in order to obtain another VA examination and medical opinion in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Finally, the Board reflects that Dr. C.B.B.’s treatment records are not of record, nor does it appear that any treatment records from the private rheumatologist have been obtained and associated with the claims file. Therefore, on remand, the Board also finds that the AOJ should attempt to obtain information regarding any private treatment the Veteran may have had for his right knee, and then obtain and associate with the claims file any outstanding identified private and VA treatment records. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the matter is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Biloxi and Pensacola VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his right knee disorders, to include any rheumatoid arthritis, which is not already of record, to specifically include Dr. C.B.B. and/or any other private rheumatologist that has treated the Veteran since discharge from service. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner who has not previously participated in this case in order to determine whether any current right knee disorders, to include degenerative joint disease and/or rheumatoid arthritis, are related to his service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all right knee disorders found, to include degenerative joint disease and/or rheumatoid arthritis. Then, for any right knee disorders found, to include degenerative joint disease and/or rheumatoid arthritis, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service, within one year of discharge from service, or is otherwise the result of military service, to include the Veteran’s noted right knee injuries and treatment for such during military service. In so addressing the above, the examiner should specifically indicate whether the Veteran’s right knee symptoms are part and parcel of his rheumatoid arthritis, and if so, whether the Veteran’s rheumatoid arthritis began during military service or within one year of discharge therefrom. The examiner should additionally indicate whether any signs and symptoms noted in service or within one year of discharge from service were initial manifestations of either his rheumatoid arthritis and/or any separate and distinct right knee arthritic condition. Finally, the examiner must also consider Dr. C.B.B.’s February 2015 letter, as well as the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology/self-medication since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Ruddy, Associate Counsel