Citation Nr: 18150816 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-35 786 DATE: November 15, 2018 ORDER Entitlement to service connection for a bilateral shoulder disability, to include as secondary to service-connected tinnitus, is denied. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected tinnitus, is denied. Entitlement to service connection for a right ankle disability, to include as secondary to tinnitus to include as secondary to service-connected tinnitus, is denied. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected tinnitus, is denied. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected tinnitus, is denied. Entitlement to service connection for right ear hearing loss, to include as secondary to service-connected tinnitus, is denied. Entitlement to an initial compensable rating for left ear hearing loss is denied. REMANDED Entitlement to service connection for anemia is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran has bilateral shoulder, hip, foot, and right ankle disabilities at this time. 2. The preponderance of the evidence weighs against a finding that the Veteran has a right ear hearing loss for VA purposes at this time. 3. The Veteran’s currently diagnosed bilateral knee disability was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between this disability and her active service. 4. The most probative evidence demonstrates that the Veteran’s left ear hearing loss is manifested by hearing impairment corresponding to no higher than an auditory acuity of Level I. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2018). 2. The criteria for service connection for bilateral hip, shoulder, foot, and right ankle disabilities are not met. 38 U.S.C. §§ 1110, 5100, 5103, 5103A (2012); 38 C.F.R. § 3.303 (2018). 3. A bilateral knee disability was not incurred in or aggravated by service, and may not be presumed related to service. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2018). 4. The criteria for an initial compensable disability rating for left ear hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.86, Diagnostic Code (DC) 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1998 to October 2002. These matters are on appeal from a July 2015 rating decision. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, certain diseases, such as sensorineural hearing loss, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). Finally, 38 U.S.C. § 1154 (a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).] Bilateral shoulder, hip, foot, and right ankle disabilities The Veteran contends that she has bilateral shoulder, hip, foot, and right ankle disabilities related to her service-connected tinnitus. The service treatment records (STRs) are void of any bilateral shoulder, hip, foot, or right ankle disabilities. Post-service, VA treatment records are void of any findings, complaints, symptoms, or diagnoses of any bilateral shoulder, hip, foot, or right ankle disabilities. Notably, a February 2008 report shows that the Veteran denied any history of bilateral shoulder, hip, foot, or right ankle pain. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time of the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 49 (1990); Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018). To the extent that the Veteran complains that she has pain or other symptoms that are related to her claimed bilateral shoulder, hip, foot, and right ankle disabilities, there is no indication that any subjective complaints result in functional impairment of earning capacity. See Hunt, supra; Saunders, supra. Consequently, the Board finds that, at no time during the pendency of the claim does the Veteran have a current diagnosis of any bilateral shoulder, hip, foot, or right ankle disabilities and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. Therefore, service connection for bilateral shoulder, hip, foot, and right ankle disabilities is not warranted. In addition, to the extent that the Veteran contends that she has bilateral shoulder, hip, foot, and right ankle disabilities related to service-connected tinnitus, since the Veteran has no currently diagnosed disabilities of the bilateral shoulder, hip, foot, and right ankle disabilities, a claim for service connection for these disabilities based on “secondary” service connection fails as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, service connection for bilateral shoulder, hip, foot, and right ankle disabilities as secondary to tinnitus is not for consideration. The Board notes that the Veteran requested VA examinations for her claimed bilateral shoulder, hip, foot, and right ankle disabilities. However, no such examination is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A (d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect to the Veteran’s claim of entitlement to service connection for bilateral shoulder, hip, foot, and right ankle disabilities, the evidence does not indicate that the Veteran has been diagnosed with these disabilities at any time. Instead, the Veteran’s medical records otherwise consistently fail to demonstrate the presence of bilateral shoulder, hip, foot, and right ankle disabilities. These facts are insufficient to trigger VA’s duty to provide an examination with an opinion. Without competent evidence indicating that the Veteran has indeed been diagnosed with bilateral shoulder, hip, foot, and right ankle disabilities, VA examinations addressing these claims are unwarranted. See Waters, 601 F.3d 1274. Right ear hearing loss The Veteran contends that she has right ear hearing loss related to due to acoustic trauma during service. Hearing impairment is considered a “disability” when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2018). Hearing impairment is considered a “disability” when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2018). The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), (held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). In this case, however, there is no evidence of a right ear hearing loss disability for VA purposes during the period under appellate review. As the Veteran had a military occupational specialty of combat engineer, exposure to acoustic trauma is conceded. See, July 2015 rating decision. However, the Board has reviewed the evidence of record and finds that the Veteran has not demonstrated that she has right ear hearing loss for VA purposes at this time. The STRs demonstrate non-disabling right ear hearing loss. On June 2015 VA audiological examination, pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 25, 25, 25, 30, and 35. The CNC word list speech recognition score revealed 96%. The audiologist diagnosed sensorineural hearing loss. The audiologist stated that using current VA criteria, the examiner found that the Veteran’s hearing acuity is within normal limits in the right ear. However, the audiologist also related the Veteran’s non-disabling right ear hearing loss to significant military noise exposure as a combat engineer. Although the examiner related the Veteran’s non-disabling right ear hearing loss to his service, the audiometric thresholds are not commensurate with a “hearing loss” disability for VA purposes under 38 C.F.R. § 3.385. The only auditory thresholds greater than 26 decibels was at 3000 and 4000 Hz at 30 and 35 decibels, respectively. Moreover, none of the auditory thresholds was at 40 decibels or greater. This weighs heavily against her claim. As set forth above, one of the elements necessary for service connection is medical evidence of a current disability. The Board has considered the statements from the Veteran regarding her right ear hearing loss. The Board acknowledges that the Veteran is certainly competent to report that he experiences difficulty hearing. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the evidence during the period on appeal fails to establish that she currently has a right ear hearing loss for VA compensation purposes. The presence of a current disability is paramount. As such, the claim of entitlement to service connection for right ear hearing loss is denied. It is important for the Veteran to understand the fact that the Board acknowledges that she currently experiences some right ear hearing loss. Although she may have experienced decreased hearing acuity during and after her service due to acoustic trauma, the audiological findings of record do not necessarily support a finding that the Veteran has a right ear hearing loss for VA purposes at this time. The Veteran’s right ear hearing, while perhaps not as good as it once was, is still within a range of normal. As there is no evidence that the Veteran currently has a right ear hearing loss disability for VA purposes, entitlement to service connection for right ear hearing loss must be denied. Bilateral knee disability The Veteran also contends that she has a bilateral knee disability that is related to her service. In the alternative, she contends that it is related to her service-connected tinnitus. The STRs include an October 1998 screening note of acute medical care which indicates a complaint of knee problems. Post service, VA treatment records include a February 2008 report which reflects that the Veteran denied any history of knee problems. On March 2017 VA knee and lower leg conditions disability DBQ examination, the Veteran presented with complaints of bilateral knee discomfort, with no specific trauma/injury to the knees. She had not seen a physician due to the knee condition. The examiner diagnosed left and right patellar pain syndrome with an onset of symptoms in 2001. Diagnostic testing failed to reveal any evidence of degenerative or traumatic arthritis. The examiner opined that the claimed disability was less likely than not related to her service. The rationale was that based on recent examination, she was diagnosed with patellofemoral pain syndrome. However, when the examiner reviewed the medical records, there was no evidence that knee pain occurred during active duty and she did not see a physician during active duty for any discomfort. He opined that her disability began once she had separated from service. In response to a request for an addendum as to whether her in-service complaints of knee pain were related to the post-service diagnosis of patellofemoral pain syndrome, in June 2017 the examiner opined that the Veteran did not have patellofemoral pain syndrome and did not present to a physician on active duty. Regarding the Veteran’s claim that her bilateral knee disability is related to her service-connected tinnitus, there is no medical suggestion of secondary causation or aggravation. Since the only evidence that the claimed bilateral knee disability is related to her service-connected tinnitus consists of conclusory generalized lay statements, which are unsupported by even speculative medical evidence, the Board finds that referral for a VA medical opinion regarding secondary service connection examination is not warranted. In this case, there is no competent medical evidence that supports the conclusion that the Veteran has a bilateral knee disability that is related to his service. Additional considerations The Board has taken the contention that the Veteran has bilateral shoulder, hip, foot, right ankle, and right ear hearing loss disabilities and that her claimed bilateral knee disability was caused by her service, seriously. Although the Veteran might believe that she has currently diagnosed bilateral shoulder, hip, foot, right ankle, and right hearing loss disabilities and that her bilateral knee disability is related to her service, the Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that she has a currently diagnosed bilateral shoulder, hip, foot, right ankle, and right hearing loss disabilities or any evidence that may serve as a medical nexus between the Veteran’s service and her claimed bilateral knee disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the existence of a currently diagnosed bilateral shoulder, hip, foot, right ankle, and right hearing loss disabilities and the etiology of a bilateral knee disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above, the Board finds that the weight of the probative evidence is against a finding that the Veteran has currently diagnosed bilateral shoulder, hip, foot, right ankle, and right hearing loss disabilities or that any currently diagnosed bilateral knee disability is related to the Veteran’s active service. Accordingly, service connection for a bilateral shoulder, hip, foot, right ankle, and right hearing loss disabilities must be denied. Increased Rating Claim Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85 (2018). The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a) (2018). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85(b) (2018). Table VIA, which assigns a Roman numeral designation based solely on the puretone threshold average, is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85 (c). In addition, where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85(h), Table VIA (2018). Pursuant to 38 C.F.R. § 4.86, an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or (2) a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. §§ 4.85 (h); 4.86 (2018). After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85 (h), Table VII (2018). Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85 (e) (2018). If, as in the instant case, impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation of I, subject to the regulations providing special consideration for paired organs and extremities. 38 C.F.R. §§ 3.383, 4.85(f) (2018). Additional compensation is not available to the Veteran based on a combination of a service-connected and non-service-connected disability, however, because, as discussed below, the Veteran’s service-connected left ear hearing impairment is not manifested to a degree of 10 percent or greater. 38 C.F.R. § 3.383 (2018). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist’s description of the functional effects of the veteran’s hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The Veteran contends that her service-connected left ear hearing loss is more severe than her current rating and warrants an initial compensable rating. Turning to the merits of the claim, on June 2015 VA hearing loss and tinnitus DBQ examination, pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 35, 35, 40, and 45 decibels, for an average of 39 decibels. CNC word list revealed 96% in the left ear. The examiner indicated that the Veteran’s hearing loss did not impact the ordinary conditions of daily life, including her ability to work. Applying the findings of the June 2015 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable evaluation for left ear hearing loss have not been met. Considering that the Veteran’s left ear manifests an average puretone threshold of 39 decibels, with a 96 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows her left ear hearing loss to be Level I impairment. Since her right ear is not service-connected, a Roman numeral I is used for this ear in Table VII. 38 C.F.R. § 4.85 (f). Applying these results to Table VII, a noncompensable evaluation is assigned. Based on these findings the Board finds that a preponderance of the evidence is against a finding that the service-connected left ear hearing loss disability warranted an initial higher rating of 10%. The Board has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment, but they do not apply because the Veteran did not demonstrate an exceptional pattern of hearing impairment. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). However, on June 2015 VA examination, the VA examiner indicated that the Veteran’s hearing loss did not impact the ordinary conditions of daily life, including the ability to work. The Board finds that this is sufficient to comply with the applicable VA policies. Martinak v. Nicholson, 21 Vet. App. 447 (2007) (VA audiologist’s indication in report that Veteran’s hearing loss affected his ability to sleep was sufficient to comply with requirements of VA’s own internal guidance documents that VA audiologists describe the effects of a hearing disability on occupational functioning and daily activities). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial 10 percent rating for her left ear hearing loss disability. To the extent that the Veteran complains of difficulty hearing in her left ear, the Veteran is competent to report her complaints of difficulty hearing, as these observations come to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran’s belief that her symptoms are of such severity as to warrant an initial compensable rating and has taken these contentions seriously. She is not, however, competent to identify a specific level of disability of her left ear hearing loss disability according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s left ear hearing loss disability has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. REASONS FOR REMAND Entitlement to service connection for anemia is remanded. The Board notes that in March 2017, the Veteran underwent the Veteran underwent a VA examination hematologic and lymphatic conditions DBQ examination and was diagnosed with anemia, which the examiner opined was not related to her service. The rationale was that she had iron deficient anemia and sickle cell trait. The two conditions are acquired due to low iron saturations, likely genetic or nutritional. The RO sought clarification of the opinion, but in August 2017 the examiner again discussed sickle cell trait and failed to clarify the opinion. In a February 2018 rating decision, the RO requested the examiner provide an opinion as to whether the iron-deficient anemia is at least as likely as not caused by service, by explaining the chronicity and permanency between her current iron-deficient anemia diagnosis or explain why her current anemia is unrelated to the illness she was diagnosed with during service. A review of the record shows that the development noted in the February 2018 deferred rating decision has not been completed. Accordingly, a remand is required for the RO to complete the development requested in the deferred rating decision. The matter is REMANDED for the following action: Complete all development specified in the February 2018 rating decision. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel