Citation Nr: 18158205 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-10 988 DATE: December 14, 2018 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a right knee meniscus tear with chondromalacia/degenerative arthritis, status post arthroscopy and debridement on the medical femoral condyle, femoral groove, and lateral joint compartments (right meniscus disability) is dismissed as moot. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a compensable rating for a right knee nondisplaced closed patellar fracture with chondromalacia of the right patella (right knee disability) is remanded. Entitlement to an increased rating in excess of 30 percent, prior to September 15, 2014, for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an increased rating in excess of 50 percent, from September 15, 2014, for PTSD is remanded. Entitlement to an increased rating in excess of 50 percent for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a currently diagnosed right ankle disability. 2. The symptoms and manifestations of the Veteran’s right meniscus disability are not clearly distinguishable from his service-connected right knee disability. CONCLUSION OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303. 2. As the Veteran’s right meniscus disability encompasses the same symptomatology and cannot be separated from the Veteran’s service-connected right knee disability, the claim for service connection for a right meniscus disability is moot. 38 U.S.C. § 7105 (d); 38 C.F.R. §§ 4.14, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2007 to June 2008, and from January 2010 to March 2011. 1. Entitlement to service connection for a right ankle disability The Veteran claims that he injured his right ankle during National Guard annual training. Indeed, the record shows that he was treated for a right ankle sprain in April 2005. X-rays were negative. The Board finds that a review of the competent medical evidence of record shows that the Veteran does not currently have a diagnosed right ankle disability. Therefore, the claim for service connection must be denied. Generally, to prevail on a claim of service connection, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The threshold question that must be addressed is whether the Veteran has a current disability of the right ankle. In the absence of proof of a present disability there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). At a March 2012 VA examination, the examiner noted a review of the Veteran’s medical history and claims file, and an in-person examination of the Veteran. The examiner noted the Veteran’s pre-service right ankle injury and treatment in 2005. In describing the current residuals, the Veteran reported the it had “pretty much resolved” but that it “pops every once in a while.” The examiner concluded that such acute injury was resolved, without residuals. In addition, the examiner found no evidence of a current disability of the right ankle. The examiner found no effect to the use or function of the Veteran’s right ankle, and as there was no pathology found, the examiner indicated there was no diagnosis. The Board finds that, other than the injury referenced above, a thorough review of the competent evidence of record reveals no evidence of a right ankle injury, or diagnosed as right ankle disability, during active duty service, to include on any separation examination or accompanying report of medical history. Similarly, a review of the competent VA and private medical records demonstrates no treatments, complaints, or diagnosis of any right ankle disability after service. The Veteran’s Social Security Administration (SSA) disability decision noted no additional evidence of an ongoing and/or diagnosable disability of the right ankle. Although the Veteran has complained of pain in his right ankle, there is no probative evidence that such results in functional impairment. Therefore, as the preponderance of the evidence is against the finding of a current right ankle disability, the claim for service connection for a right ankle disability must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a right meniscus disability. The Veteran’s claim for entitlement to service connection for his meniscus disability is rendered moot by the grant service connection for his claimed right knee disability. The competent medical and lay evidence of records suggests that the symptoms and manifestations of both the Veteran’s right meniscus and right knee disabilities cannot be distinguished, and therefore are part and parcel of his now-granted right knee disability. Therefore, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. Misleader v. West, 11 Vet. App. 181 (1998). Accordingly, service connection for a right meniscus disability is dismissed as moot. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss and tinnitus is remanded. As a preliminary matter, the Board acknowledges at the outset that some degree of hearing loss was noted on the Veteran’s entrance examination. However, that hearing loss did not meet VA’s criteria of hearing loss for compensation purposes under 38 C.F.R. § 3.385, and, although impaired hearing was identified by the VA examiner, generally, his hearing loss was not specifically discussed. Accordingly, the Board finds that the presumption of soundness remains intact for the Veteran’s claim for service connection to hearing loss. McKinney v. McDonald, 28 Vet. App. 15, 25-28 (2016). Here, the Board must find the December 2012 VA examination report to be inadequate, as it is premised on a determination that the Veteran had a preexisting hearing loss disability. Specifically, because the examiner found a preexisting condition, and since the medical evidence of record does not objectively demonstrate that the Veteran suffered from hearing loss (for VA purposes) prior to service, therefore additional opinion is required. Finally, because a decision on hearing loss could significantly impact a decision on the issue of tinnitus, the issues are inextricably intertwined. A remand of the claim for tinnitus is required. 2. Entitlement to a compensable rating for a right knee nondisplaced closed patellar fracture with chondromalacia of the right patella (right knee disability) is remanded. In a February 2017 rating decision, the RO granted service conneciton for a right knee disability, and provided a noncompensable rating for this disaiblity. The Veteran’s represenative filed a notice of disagreement in March 2017 to that rating decision, inter alia, contesting the assignment of a zero percent rating. However, no statement of the case addressing the claim of increased rating have been issued. Therefore, the Board is required to remand the claim for issuance of a statement of the case. Manlicon v. West, 12 Vet. App. 238 (1999). Additionally, as the Board has found that the symptoms and manifestations of the Veteran’s claimed right meniscus disability, and his service-connected right knee disability is undistinguishable, the RO must consider all symptomology related to the Veteran’s knee in evaluating the rating for the right knee. 3. Entitlement to an increased rating for PTSD and sleep apnea is remanded. The Veteran was provided a VA examination of PTSD and sleep apnea in March 2015, more than three and half years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board finds that not only is the last examination remote, but the examinations appears to no longer indicate the Veteran’s current level of disability due to PTSD and sleep apnea, to include their functional effects on employment. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to fully and fairly rate the Veteran’s claim for an increased rating for his PTSD and sleep apnea. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Remand is also required of the claim of entitlement to TDIU. This is because the claim is inextricably intertwined with the Veteran’s increased rating claim appeal. Harris v. Derwinski, 1Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. Then, schedule the Veteran for a VA audiological examination to evaluate the nature and etiology of his hearing loss and tinnitus. The examiner must review the claims file and should note that review in the report. A complete rationale for any opinion expressed should be included in the examination report. The examiner is requested to provide the following information: The examiner should opine whether each disability was at least as likely as not (50 percent probability or greater) incurred, caused by, or causally related to any event or incident during active service. The examiner is asked to assume that the Veteran’s entered service sound (without hearing loss). 3. Then, schedule the Veteran for a VA examination of PTSD. The examiner must review the claims file and must note that review in the report. The examiner is specifically asked to report on the current nature and severity of the Veteran’s psychiatric condition, to include a current diagnosis. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation by reason of service¬ connected disabilities (PTSD and scars of the right cheek and right temporal area and right knee disability). If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service¬ connected disabilities. 4. Then, schedule the Veteran for a VA examination of sleep apnea. The examiner must review the claims file and should note that review in the report. The examiner should opine whether it is as likely as not (50 percent or greater probability) that any diagnosed sleep apnea is related to active service or any incident of active service. Additionally, the examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sleep apnea is etiologically related to or caused by any of the service-connected disabilities, to include depression or hypertension, or any treatment for service-connected disabilities. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sleep apnea is aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. A complete rationale for any opinion expressed should be included in the examination report. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel