Citation Nr: 18152537 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-47 341 DATE: November 23, 2018 ORDER Service connection for a bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for residuals of a right wrist ganglion cyst removal surgery is remanded. Entitlement to an initial disability rating for a left knee disability in excess of 10 percent is remanded. Entitlement to an initial disability rating for a left testicle hydrocele with epididymitis in excess of 10 percent is remanded. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability per VA standards. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2008 to April 2012, with service in Afghanistan. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and August 2014 rating decisions by the Department of Veterans Affairs (VA). Service connection for a bilateral hearing loss disability is denied. The Veteran contends that he has a bilateral hearing loss disability since being exposed to excessive noise in service. Specifically, he asserts that because of his military occupational specialty as an ammunitions specialist he was exposed to excessive noise of aircraft engines and the firing of weapons on the shooting range and while deployed to Afghanistan. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). The United States Court of Appeals for Veterans Claims (Court) has held that “the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. In this case, the Board finds that the evidence does not establish the presence of a current bilateral hearing loss disability by VA standards at any time during the pendency of the appeal. Indeed, the only VA examination of record of March 2014 shows speech discrimination of 96 percent in the left ear and 100 percent in the right ear. Decibel (dB) loss at the puretone threshold of 500 Hertz (Hz), 1000 Hz, 2000 Hz, 3000 Hz and 4000 Hz were 15, 20, 20, 20 and 20 dB, respectively in the left ear; and, 15, 20, 10,15,15 in the right ear. Average puretone threshold in the left ear was 20 and 15 in the right. As there is no competent evidence showing a current hearing loss disability as defined by § 3.385, service connection for a bilateral hearing loss disability is denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992) (In the absence of proof of current disability, there can be no valid claim of service connection). REASONS FOR REMAND Entitlement to service connection for residuals of a right wrist ganglion cyst removal surgery is remanded. The Board finds that further development and adjudication is necessary to comply with VA’s duty to assist the Veteran to obtain evidence needed to substantiate his claim. The Veteran contends that his right wrist disability is related to his active service as an ammunitions specialist who routinely participated in parachute jumps out of an aircraft. Specifically, he asserts that his wrist was injured after multiple “rough landings,” to include tumbling head-over-heels several times, and continuously lifting and carrying 120 lbs. ammo canisters. See February 2016 Correspondence; January 2016 Buddy Statements. In this regard, the Board notes that while there was no documented diagnosis of a disability of the wrist in service, symptomatology was noted. Indeed, an August 2011 service treatment record indicates that the Veteran “does not have any flexibility appreciated in his wrist or fingers.” Further, post service, VA treatment records show a diagnosis of a right wrist ganglion cyst (with complaints of pain, weakness, numbness, tingling, and decreased range of motion) and that the Veteran underwent ganglion removal surgery in August 2014 (December 2013, February 2014, August 2014, March 2015). Moreover, the February 2016 statement from Veteran’s mother supports his claim of a right wrist disability in service and since. Given the Veteran’s assertions of an in-service injury and the current diagnoses, the Board finds an examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Entitlement to an initial disability rating for a left knee disability in excess of 10 percent is remanded. The Veteran contends that his left knee pain, flexibility, and range of motion continues to worsen. See February 2016 Correspondence; March 2015 VA treatment record. In this regard, the Veteran’s most recent VA examination for his left knee occurred in March 2014. Since that time, the record reflects that his disability has worsened. Specifically, the Veteran reports left knee worsening chronic sharp pain, swelling, fatigue, grinding, and locking; interference with daily routine; and he can no longer perform “many exercises” or physical activities. See February 2016 Correspondence; March 2015 VA treatment record. Because it has been more than four years since the last VA examination, a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Moreover, VA examinations must include joint testing on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances, with range of motion measurements. Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the United States Court of Appeals for Veterans Claims (Court) has held that with respect to flare-ups, VA examiners must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation, including by soliciting information regarding frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). During the March 2014 VA examination, the Veteran indicated that he experienced left knee flare-ups which consist of sharp pain with an increase in an aching, throbbing, and grinding sensation for a “few days” that occurs when crouching, lifting, running, walking more than 35 minutes, or any strenuous activity. He indicated that only “rest alleviates the pain.” While the Veteran’s statements suggest that his range of motion is further restricted during flare-ups, the examiner did not provide an opinion regarding flare-ups consistent with Sharp. As the April 2013 VA examination does not reflect the considerations required by Correia and Sharp, remand for a new examination is required. Entitlement to an initial disability rating for a left testicle hydrocele with epididymitis in excess of 10 percent is remanded. The Veteran contends that his left testicle hydrocele with epididymitis “has caused more severe symptomatology than that contemplated by the 10 percent disability rating currently assigned.” See June 2018 Appellate Brief. In this regard, the Veteran’s most recent VA examination for his left testicle hydrocele occurred in March 2014. Since that time, the record reflects that his disability has worsened. Specifically, the Veteran reports daily bilateral testicle/scrotal pain, infections and swelling twice a month, and decreased sexual intercourse and physical activities due to pain. See February 2016 Correspondence; VA treatment records dated March 2015, March 2016, and February 2017. Because it has been more than four years since the last VA examination, a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from February 2017 to the present. 2. After the above development in (1) is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any right wrist disability. The examiner should review the claim file and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all right wrist disabilities present during the appeal period (from March 2014). In so doing, it should be noted that the record contains a diagnosis of a right wrist ganglion cyst and the Veteran underwent right wrist ganglion cyst removal surgery in August 2014. (b.) For each right wrist disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. In so doing the examiner should address the August 2011 in-service treatment note indicating decreased flexibility in the Veteran’s wrist and fingers and the Veteran’s statements that he injured his right wrist after multiple parachute jump “rough landings,” to include tumbling head-over-heels several times, and continuously lifting and carrying 120 lbs. ammo canisters. 3. After the above development in (1) is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left knee disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. 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. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 4. After the above development in (1) is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected left testicle hydrocele with epididymitis. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel