Citation Nr: 18157185 Decision Date: 12/13/18 Archive Date: 12/11/18 DOCKET NO. 16-52 268 DATE: December 13, 2018 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1985 to July 1989, February 2003 to July 2004, and April 2010 to May 2011. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision by the Department of Veterans Affairs (VA) in Nashville, Tennessee. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss and a right knee disability. Specifically, he argues that he was exposed to hazardous noise and incurred a right knee injury while deployed in Afghanistan and, thus, should be granted service connection. Although not explicitly argued, his statements and the record have also raised a theory of service connection based on aggravation. Issue 1. To ensure due process of law, remand is necessary to issuance of a supplemental statement of the case as relevant evidence was obtained following issuance of the most recent statement of the case. Concerning the Veteran’s right knee claim, the September1984 service examination reflects normal clinical evaluation of the lower extremities and that the Veteran denied trick/locked knees. Radiological records show that, in February 1988, the Veteran sustained a gunshot wound to the right leg while hunting. An x-ray was preformed and found “[s]everal small radiodensities in the soft tissues of the distal right thigh.” In addition, the report noted that the “bones are normal in appearance.” A March 2008 examination report reflects normal clinical evaluation of the lower extremities and that the Veteran denied knee trouble. In January 2009, the Veteran reported that he had surgeries on his left and right knees. See January 2009 Soldier’s Statement. Furthermore, in the statement, the Veteran stated that the injury/illness did not occur while on military duty. Id. In August 2009, the Veteran again reported that he had multiple surgeries on both knees. See August 2009 Periodic Heath Assessment. Then, in September 2009, the Veteran, while on active duty for training, reported pain and swelling of both knees. See September 2009 Statement of Medical Examination and Duty Status. Prior to and on the Veteran’s last period of active duty, April 2010 to May 2011, he was placed on a permanent light-duty physical profile that exempted him from running, jumping or long-distance marches, in part, because of his previous knee surgeries. In addition, the Veteran’s last period of active duty contains no documentation of a right knee trauma incident. While on deployment the Veteran did not report to sick call for any swollen, stiff or painful joints. See April 2011 Post-Deployment Health Assessment. The Veteran did, however, see a healthcare provider 30 times for symptoms such as persistent coughing, diarrhea, and vomiting. Id. In September 2011, post-deployment, the Veteran reported that he had a right knee lump behind the knee. See September 2011 Nurse Telephone Note. The Veteran stated that it has been there for about two months and that he has been having trouble with this condition since he got back from deployment. Id. Additionally, he stated that it may be a Baker’s cyst growing into the tendons which was causing him pain. Id. A February 2012 MRI found that the Veteran had a “[t]orn medial meniscus with mild DJD medial compartment and medial facet of patella.” See February 2012 Surgery Attending Pre OP Ortho. Shortly afterwards, the Veteran had surgery on his right knee. A February 2014 VA knee examination reflects that that the examiner declined to opine in this matter because she stated it would “be resorting to mere speculation to opine that veteran’s claimed right knee condition was incurred in or caused by active duty.” The examiner took into consideration, among other things, the Veteran’s lay statements, service treatment records indicating that the Veteran’s right thigh was hit by small birdshot pellets in 1988, evidence indicating that the Veteran had a right knee surgery while in the National Guard. In addition, the examiner considered the fact that the Veteran was on a permanent physical profile in his final period of active duty, and that there was no documentation indicating any physical trauma to the right knee during the Veteran’s final period of active duty. Following issuance of the most recent statement of the case, VA provided a VA knee examination in April 2018 and received a report therefrom. The April 2018 VA examination report reflects that the Veteran’s right knee disability was less than 50 percent or greater probability incurred in or caused by the Veteran’s active duty. In addition, the examiner opined that the “objective evidence does not support aggravation of the right knee beyond its natural history due to active duty service.” The examiner considered, among other things, that the Veteran had multiple knee surgeries outside of active service, the Veteran’s left knee was injured during private employment, and the Veteran’s lay statements concerning the increase of knee pain during the final months of deployment in Afghanistan. Issue 2. To ensure due process of law, remand is necessary to issuance of a supplemental statement of the case as relevant evidence was obtained following issuance of the most recent statement of the case. Additionally, remand is necessary to ensure that VA has met its duty to assist in this matter. 38 C.F.R. § 3.159(c). A review of the record discloses that the Veteran underwent four valid audiometric examinations. The results are recorded as follows: September 1984 (Enlistment) Hz 500 1000 2000 3000 4000 6000 R 10 5 5 25 30 70 L 10 10 0 25 45 40 May 1987 (Regular) Hz 500 1000 2000 3000 4000 6000 R 15 10 5 10 50 75 L 15 10 0 25 50 30 March 2008 (National Guard) Hz 500 1000 2000 3000 4000 6000 R 5 0 15 60 80 80 L 5 5 10 55 45 45 February 2013 (VA Examination) Hz 500 1000 2000 3000 4000 6000 R 5 0 15 60 80 80 L 5 5 10 55 45 45 In this case, the Veteran has a current bilateral hearing loss disability and the in-service audiometry findings document a bilateral hearing loss disability at the entrance examination. See 38 C.F.R. § 3.385 (defining when impaired hearing will be considered to be a disability). The audiometry findings also demonstrate right and left ear upward shift of more than 10 decibels at 2000, 3000, 4000, and 6000 Hertz (Hz) between enlistment and the February 2013 VA examination. As a result, because the Veteran’s impaired hearing was noted at entrance into service, his hearing acuity is not considered to have been in sound condition at entrance. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a preexisting disorder is noted upon entry into service, the presumption of soundness does not attach and a veteran cannot bring a claim for direct service connection for that disorder; rather, the veteran may bring a claim for service-connected aggravation of that disorder. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury is considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). A veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. Jensen, 19 F.3d at 1417. If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is then on the Secretary to rebut that presumption. Horn v. Shinseki, 25 Vet. App. 234 (2012); 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). To rebut that presumption, the Secretary must show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235, n. 6; 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). A February 2013 VA examination reflects hearing loss of both ears, but does not provide a nexus opinion. A February 2014 VA examination reflects that puretone test results were not valid for rating purposes because the audiometric results showed “non-organic hearing loss.” Speech discrimination scores (Maryland CNC word list) were 96 percent on the right ear and 92 percent on the left ear. The examiner concluded that the Veteran had normal hearing for both ears. The examiner stated that “[d]ue to the presence of a non-organic hearing loss, I cannot resolve this Veteran’s hearing loss [etiology] without resort to mere speculation.” Id. A March 2018 VA examination also found that the validity of the puretone test results were not valid for rating purposes because the audiometric results “were suggestive of a non-organic hearing loss/hearing loss component.” Concerning the Maryland CNC word list, the examiner was unable to perform this test because the “use of the word recognition score is not appropriate for this Veteran.” Id. Reasons included language difficulties, cognitive problems, inconsistent word recognition scores, etc. The examiner ultimately found that the Veteran had normal hearing for both ears. Id. The examiner, however, did not provide an etiology, stating that because the results are “unreliable and unsuitable for rating purposes, I am unable to provide an opinion without resort to mere speculation.” Id. Because none of VA examiners involved in this case has provided an opinion regarding aggravation of the Veteran’s bilateral hearing loss noted at the entrance examination by audiometry findings, and because none of the examiners has not identified the extent to which a shift in hearing acuity would be clinically significant, the Board finds that a supplemental VA medical opinion is warranted. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers that treated his disorders. Make two requests for the authorized records from identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all relevant VA treatment records dated from May 2018 to the Present. 3. Schedule the Veteran for an examination by an audiologist to determine the nature and etiology of his bilateral hearing loss. All appropriate test, studies, and consultation should be accomplished and all clinical findings should be reported in detail. The audiologist should provide opinions, consistent with sound medical judgment, addressing the following: (a) The significance, if any, of the threshold shift of more than 10 decibels for both ears at 2000, 3000, 4000, 6000 Hz between enlistment and the 2013 VA examination. In determining whether these threshold shifts do or do not represent an increase in severity of hearing impairment, clearly and completely explain why or why not. (b) If the threshold shifts of more than 10 decibels at 2000, 3000, 4000, and 6000 Hz are deemed to represent an increase in severity of hearing impairment, whether there is clear and unmistakable (obvious or manifest) evidence that such increase in severity during service of the Veteran’s pre-existing bilateral hearing loss (which was noted on his September 1984 entrance examination) was due to the natural progress of the disorder. In rendering the requested opinions, the examiner must consider and discuss the Veteran’s contentions regarding military noise exposure from his deployment, his pre- and post-service occupational noise exposure as a construction manager, and the upward shift of more than 10 decibels at 2000, 3000, 4000, and 6000 Hz between the entrance examination in September 1984 and VA examination in February 2013. 4. Ensure that all VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the claims file since the last adjudication). Adjudication of the Veteran’s bilateral hearing loss and right knee disability claims must include consideration of the March and April 2018 VA examination reports. If any benefit sought is denied, a supplemental statement of the case should be issued to the Veteran and his authorized representative. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffey, Associate Counsel