Citation Nr: 18150038 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-40 473 DATE: November 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a neck disability is remanded. FINDING OF FACT The Veteran does not have a hearing loss disability as defined by VA regulation. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1988 to December 1996. As a threshold matter, the Board notes that initially on appeal was the issue of service connection for tinnitus. However, this claim was granted during the course of this appeal and, as such, represents a full grant of the benefits sought. Thus, that claim is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In May 2013, the RO denied service connection for bilateral hearing loss. The Veteran filed a Notice of Disagreement in July 2013. A Statement of the Case was issued in July 2016. The Veteran did not perfect this issue. See August 2016 VA Form 9. However, this issue was included in the August 2016 Supplemental Statement of the Case (SSOC). The Board acknowledges a November 2016 VA Form 21-0961, which notes that the inclusion of this issue in the August 2016 SSOC was an oversight and states that the RO would inform the Veteran of this. However, there is no such correspondence in the claims file. All due process violations are nonprejudicial in this regard. The Board explicitly waives the issue of the timeliness of a substantive appeal and will take jurisdiction over the issue. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Service Connection Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, such as sensorineural hearing loss, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran’s service treatment records (STRs) are not complete. The entrance examination is missing, and one of the in-service physical examination reports notes that it was conducted due to “lost records.” The Board acknowledges its heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision” when service treatment records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). However, no presumption, either in favor of the claimant or against VA arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply an “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents). 1. Entitlement to service connection for bilateral 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. The Veteran contends that he has bilateral hearing loss that is related to his service, specifically, the duties that he performed as a military policeman. He is service-connected for tinnitus. Thus, in-service noise exposure is conceded. Service treatment records (STRs) contain a September 1992 audiogram, which reflects the following audiometric findings with respect to the right ear: 15 decibels (dB) at 500 Hertz (Hz), 5 dB at 1000 Hz, 0 dB at 2000 Hz, 0 dB at 3000 Hz, and 0 dB at 4000 Hz. The findings with respect to the left ear were recorded as follows: 10 decibels (dB) at 500 Hertz (Hz), 10 dB at 1000 Hz, 0 dB at 2000 Hz, 0 dB at 3000 Hz, and 20 dB at 4000 Hz. A May 1994 audiogram, which reflects the following audiometric findings with respect to the right ear: 15 decibels (dB) at 500 Hertz (Hz), 5 dB at 1000 Hz, 0 dB at 2000 Hz, 0 dB at 3000 Hz, and 0 dB at 4000 Hz. The findings with respect to the left ear were recorded as follows: 20 decibels (dB) at 500 Hertz (Hz), 5 dB at 1000 Hz, 0 dB at 2000 Hz, 5 dB at 3000 Hz, and 25 dB at 4000 Hz. A July 1995 audiogram contains the following audiometric findings with respect to the right ear: 10 decibels (dB) at 500 Hertz (Hz), 5 dB at 1000 Hz, 0 dB at 2000 Hz, 0 dB at 3000 Hz, and 0 dB at 4000 Hz. The findings with respect to the left ear were recorded as follows: 15 decibels (dB) at 500 Hertz (Hz), 10 dB at 1000 Hz, 0 dB at 2000 Hz, 0 dB at 3000 Hz, and 20 dB at 4000 Hz. The Veteran had normal ears during the September 1996 separation examination. The audiometric findings with respect to the right ear were recorded as follows: 15 decibels (dB) at 500 Hertz (Hz), 5 dB at 1000 Hz, 0 dB at 2000 Hz, 0 dB at 3000 Hz, and 0 dB at 4000 Hz. The findings with respect to the left ear were recorded as follows: 5 decibels (dB) at 500 Hertz (Hz), 5 dB at 1000 Hz, 0 dB at 2000 Hz, 0 dB at 3000 Hz, and 20 dB at 4000 Hz. The audiogram itself reflects 25 dB at 4000 Hz in the left ear. The Veteran submitted to a March 2013VA hearing loss examination. Audiometric findings with respect to the right ear were recorded as follows: 15 decibels (dB) at 500 Hertz (Hz), 10 dB at 1000 Hz, 5 dB at 2000 Hz, 10 dB at 3000 Hz, and 5 dB at 4000 Hz. The findings with respect to the left ear were recorded as follows: 15 decibels (dB) at 500 Hertz (Hz), 10 dB at 1000 Hz, 10 dB at 2000 Hz, 10 dB at 3000 Hz, and 20 dB at 4000 Hz. Speech recognition was 100 percent in both ears. In May 2013, the examiner reviewed the claims file and provided a negative nexus opinion in light of the Veteran’s “normal hearing sensitivity.” Bilateral hearing loss must be denied based on lack of current disability. The record shows that the Veteran had some degree of left ear hearing loss during and after service, but not a disability for VA purposes. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (stating the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Although some of the STRs were lost, there is no currentThus, the weight of the evidence is against the claim. To the extent that the Veteran has attested to having chronic/continuous symptomatology of hearing loss since service, the Board recognizes that he can attest to decreased hearing in his ears. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran can attest to symptomatology, the Board must address the credibility of these statements. Neither the STRs nor the post-service medical records reveal any complaints related to hearing loss. Thus, any assertions of difficulty hearing since service are contradicted by contemporaneous treatment records. In these circumstances, the Board gives more credence to the contemporaneous medical evidence of record, which was negative for complaints, diagnoses, or treatment for hearing loss during active service or for many years post-service. See Buchanan v. Nicholson, 451 F.3d 1331 (2006); Curry v. Brown, 7 Vet. App. 59 (1994). In light of the above, entitlement to service connection for bilateral hearing loss based on post-service continuity of symptomatology must be denied. See 38 C.F.R. § 3.303 (b). Lastly, the Board notes that service connection for a hearing loss disability may also be granted on a presumptive basis if it manifests itself to a degree of 10 percent or more within one year after discharge. 38 C.F.R. §§ 3.307, 3.309(a). However, there is no such evidence in this case. On the contrary, the objective medical evidence shows that the Veteran does not have a hearing loss disability for VA purposes. Presumptive service connection is not warranted. Based upon a review of the record, the preponderance of the evidence is against the claims of entitlement to service connection for bilateral hearing loss. Therefore, although it has been carefully considered in this case involving lost records, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. REASONS FOR REMAND 1. Entitlement to service connection for right knee and left knee disabilities is remanded. With regard to the Veteran’s claims of service connection for his right knee and left knee, STRs show numerous complaints of pain and a diagnosis of retropatellar pain syndrome (RPPS), bilaterally. Post-service records show that the Veteran had an arthroscopic repair of his right knee in July 2011, and subsequently received physical therapy for both knees. In his March 2013 VA examination, the examiner found that the Veteran’s bilateral knee disabilities were not related to service. In so finding, the examiner noted that while the Veteran reported continuous bilateral knee pain since leaving service, he did not seek treatment for his knees until June 2011 after injuring his right knee in November 2010. With regard to his left knee, the examiner noted that the Veteran reported his left knee is not as bad as his right, and that he has not sought medical treatment for his left knee pain. In considering the evidence, the Board notes that in his initial June 2011 visit prior to his right knee surgery, the Veteran reported having received two steroid shots by another orthopedist for presumed right knee injury. However, there is no indication that attempts have been made to obtain these records. Given that there may be outstanding treatment records pertaining to the Veteran’s right and left knees, a remand is warranted. The Board also notes that, on remand, an examination should be obtained which takes into account the Veteran’s reported pain. Although the Veteran does not have a clinical diagnosis for his left knee, the Veteran has reported continuous pain in his left knee since leaving service. In light of the recent Federal Circuit decision in Saunders v. Wilkie, on remand, the Veteran’s right and left knee should also be examined to determine whether the Veteran’s knee pain causes functional impairment. See Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (Fed. Cir. April 3, 2018) (finding that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis). 2. Entitlement to service connection for a back disability is remanded. The Veteran seeks service connection for a back disability contending that his current back condition was caused by service. In March 2013, the Veteran received a VA examination for his back in which the examiner determined that the Veteran does not have a diagnosed back disability finding that the Veteran’s service treatment records (STRs) do not contain any complaints, treatment, or diagnosis pertaining to his back. The examiner further noted that private treatment records presented by the Veteran also did not show any complaints, treatment, or evaluation for his back. The examiner concluded that the Veteran’s back condition is less likely than not related to service. In evaluating the evidence, the Board notes that although the Veteran’s STRs are silent as to any treatment for a back condition, there is evidence of a complaint of back pain as noted in a May 1994 Report of Medical History. Additionally, in his VA Form 9, the Veteran reported having had back pain while in service including multiple visits to sick call. Further, in his VA Form 9, the Veteran reported that he received treatment from a chiropractor and that he has diagnoses of degenerative disc disease, bone spurs, slipped discs, and scoliosis. Although the Veteran has submitted x-rays which he contends are evidence of said diagnoses, the record is absent of any chiropractic treatment notes. The Board recognizes that VA has a duty to assist the Veteran in substantiating his claim. As such, a remand is warranted to attempt to obtain any outstanding STRs and private treatment records that may be relevant to the Veteran’s claim. 3. Entitlement to service connection for a neck disability is remanded. Concerning the Veteran’s asserted neck disability, the Board also finds that remand is warranted to obtain outstanding STRs, if any, and relevant private treatment records. Like the Veteran’s asserted claims for his back and knees, the Veteran also reported visiting sick call while in service, and having continuous pain in his neck since service. The Veteran has also submitted documentation referencing a scheduled surgery to his neck in January 2018. Therefore, remand is warranted to obtain any outstanding STRs and private medical records. The matters are REMANDED for the following action: 1. Attempt to obtain any of the Veteran’s missing service treatment records. If further attempts would be futile, the RO must make a formal finding of unavailability as to those service treatment records. 2. Obtain any outstanding VA medical records not already of record relating to the claim. 3. Ask the Veteran to identify any treatment received from private providers related to his back, neck, right knee, and left knee disabilities. The AOJ should undertake appropriate development to obtain any outstanding private treatment records. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. 4. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of any currently diagnosed back, neck, right knee, and left knee disabilities. The claims file, including a copy of this remand, must be made available to, and reviewed by the examiner. Any indicated studies should be performed. The VA examiner should offer an opinion with supporting rationale as to the following: a) Please list all currently diagnosed back, neck, and knee disabilities. If the Veteran does not have a back, neck, or knee disability, the examiner must opine whether the Veteran has back, neck, or knee pain resulting in functional impairment. b) For each disability listed above, or if no disability is diagnosed, for any pain with functional impairment, is it at least as likely as not (50 percent probability or greater) that such disability or pain is had its onset during the Veteran’s service or is otherwise etiologically related to such service? The examiner must consider the relevant STRs and address the Veteran’s lay statements regarding symptomatology both during and since active service. (Continued on the next page)   5. Then, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel