Citation Nr: 18152445 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-00 571 DATE: November 21, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed bilateral hearing loss was incurred in his active military service. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, bilateral hearing loss was incurred in his active service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to April 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2018, the Veteran presented sworn testimony during a personal hearing in St. Petersburg, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. In September 2018, the Veteran submitted additional evidence directly to the Board. At that time, he also submitted a written waiver of local consideration of this evidence; the waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2017). 1. Entitlement to service connection for bilateral hearing loss. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone or speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the law 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. Here, the Veteran contends that he has bilateral hearing loss, which is due to in-service noise exposure. See, e.g., the July 2018 Board hearing transcript. As indicated above, the record demonstrates that the Veteran served on active duty from March 1981 to April 1983. He has asserted repetitive exposure to the noise from truck engines, while performing his military occupational specialty (MOS) of light wheel vehicle mechanic. He additionally asserts acoustic trauma due to the firing of guns, mortars, and rockets during his military training. See the private audiological evaluation dated September 2018. To this end, the Veteran’s assertions of in-service acoustic noise exposure are consistent with the documentary evidence of record, including service personnel records. In addition, the Veteran’s service treatment records, including his February 1983 separation examination, did not document any audiological impairment or abnormalities. The Veteran was afforded a VA audiology examination in December 2011, at which time the examiner confirmed a diagnosis of bilateral hearing loss sufficient for VA compensation purposes. See 38 C.F.R. § 3.385 (2017). As to the question of nexus, the examiner concluded that the diagnosed bilateral hearing loss is not at least as likely as not caused by or a result of in-service noise exposure. The examiner provided the following rationale: “Veteran’s hearing was normal at enlistment and separation without shifts, which does not support noise-induced hearing loss; therefore, it is not caused by in-service noise exposure.” Private audiological records dated in December 2015 indicated that the Veteran “apparently has a longstanding history of bilateral hearing loss having been exposed to significant noise in the military.” It was further noted that the Veteran “does have a fairly significant neurosensory hearing loss.” In support of his claim, the Veteran recently submitted a September 2018 report from a private audiologist. In his September 2018 report, Dr. G.H. observed that the Veteran “trained using an M-16 rifle and was awarded a Sharpshooter badge for that weapon. During training, he also report[ed] exposure to howitzers and mortars, all without the use of ear protection.” The Veteran additionally reported “waking and sleeping in the immediate vicinity of 6 kw diesel generators for two weeks out of every month for three years.” Dr. G.H. stated the Veteran’s “hearing loss is consistent with the types of noise exposure reported.” He explained, “[a]ttaining a Sharpshooter badge with the M1 and the MOS of light wheel vehicle and power generator mechanic are both high probability for exposure to hazardous levels of noise.” Dr. G.H. concluded that the Veteran’s right and left ear hearing loss is “more likely than not connected to the Veteran’s service.” Thus, there is conflicting medical evidence of record concerning the question of nexus between the Veteran’s current disabilities and his military service. The Board has the authority to “discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.” See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the United States Court of Appeals for Veterans Claims has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). With respect to the negative nexus opinion expressed by the December 2011 VA audiology examiner, the Board notes that the absence of evidence of a hearing disability during service is not in and of itself fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, evidence of current hearing loss and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As noted above, Dr. G.H. indicated that the Veteran’s currently diagnosed bilateral hearing loss is related to his military service. This opinion is supported by the competent assertions of the Veteran concerning his in-service noise exposure, as well as his continuing hearing loss from that time. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the diagnosed bilateral hearing loss is the result of the Veteran’s military service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of service connection for bilateral hearing loss. See 38 U.S.C. § 5107 (2012). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran asserts entitlement to service connection for right and left knee disabilities, which he contends were incurred during his active duty service. Specifically, he asserted that he developed in-service knee pain and symptoms due to repetitive kneeling while performing his MOS of light wheel vehicle mechanic. See, e.g. the July 2018 Board hearing transcript, pg. 4. The Veteran’s service treatment records show that he was treated for complaints of chondromalacia in June 1982. At that time, it was further noted that the Veteran has a “long history of same.” Physical examination revealed crepitus with patellar entrapment, bilaterally. The Veteran was diagnosed with subpatellar pain and was instructed to run at his own pace for 30 days. A Report of Medical History dated March 1983 noted his report of chondromalacia. The Veteran was afforded a VA examination in December 2011 at which time he was noted to have arthralgias of the bilateral knees without functional loss. The examiner indicated that the Veteran’s claimed right and left knee disabilities were “less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The examiner explained, “[r]eview of the c-file showed impression of ‘subpatellar pain.’ There was no x-ray to support any pathology to knees. There is no medical evidence of knee condition from 1982 to 2011, therefore chronicity of knee condition cannot be supported or established.” The examiner continued, “[c]urrent clinical findings show no knee abnormalities except for being ‘bow legged,’ which the Veteran states he always had this as a child.” In support of his claim, the Veteran submitted private treatment records documenting a current diagnosis of osteoarthritis of the bilateral knees. In an August 2018 ‘cold injury residuals’ report, a private treatment provider stated that the Veteran’s knee disabilities are more likely than not connected to his military service; it was further noted that the Veteran’s knee disabilities were “more than likely accelerated by his served time in the military.” With regard to the newly received medical evidence, the Board observes that the Veteran had made no prior assertion that his bilateral knee disabilities are due to a cold injury suffered during his military service. Moreover, the evidence of record does not indicate that he suffered any cold injury during his military service. However, given the evidence that the Veteran is now diagnosed with osteoarthritis of the bilateral knees, the Board finds that these matters should be remanded for a VA addendum opinion to address whether the Veteran’s diagnosed osteoarthritis of the right and left knee disabilities are due to his military service. On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran’s claims file. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed right and left knee disabilities. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should provide an opinion as to whether it is at least as likely as not that any current right and left knee disability, to include osteoarthritis, was incurred in the Veteran’s active duty service. In providing the opinion, the examiner should consider the relevant evidence of record, including service treatment records documenting a June 1982 notation of chondromalacia with crepitus, patellar entrapment, and subpatellar pain. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel