Citation Nr: 1807974 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-28 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a bilateral hip disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for Parkinson's disease. 5. Entitlement to a rating in excess of 20 percent for lumbosacral strain with arthritis. 6. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Michael A. Rake, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran had active duty from December 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and February 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In May 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. The evidence raises the issue of whether the Veteran is unemployable due, in part, to service-connected his service-connected disabilities. The Board takes jurisdiction of the issue of entitlement to a TDIU as it is part and parcel to the claim for increase on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to an service connection for Parkinson's Disease, a bilateral hip disability, a left knee disability; an increased rating for the lumbosacral strain; and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's hearing loss had its onset in service. CONCLUSION OF LAW The criteria for service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for bilateral hearing, which he contends began in service and has been recurrent since that time. All three elements of service connection are established by the competent and credible lay and medical evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has a diagnosis of bilateral hearing loss and suffered acoustic trauma when exposed to extreme loud noise in service while performing his duties as a power generator operator and during basic training, when he was exposed to tank fire without ear protection. See, e.g., VA examinations (June 2008; January 2010). Thus, the first two criteria have been met. Further, the competent and credible evidence of record shows that his current bilateral hearing loss began during service and has been recurrent since that time. The Veteran is competent to report the onset and continuation of his hearing loss symptoms and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, in October 2012, a private audiologist opined that it is at least as likely as not that the Veteran's current hearing loss is related to prolonged in-service noise exposure. The Board notes that the January 2010 VA examiner opined that the Veteran's current bilateral hearing loss was not related to service, but finds that the examiner's opinion is not probative as it fails to consider and directly address negative shifts of acuity thresholds found in the service treatment records. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); Service audiograms (August 6, 1970; August 25, 1971) (showing negative shifts and some hearing loss). Because the competent, credible evidence of record shows that the Veteran's bilateral hearing loss had its onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). ORDER Service connection for hearing loss is granted. REMAND As to the lumbosacral strain with arthritis, the Board finds that a new VA examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints for pain on both active and passive motion and in weight-bearing and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The most recent VA examination, which was conducted in September 2017, indicates that the suffers some change in motion between active and passive testing and notes pain on weight bearing, but fails to record range of motion testing for pain on passive motion and weight-bearing. Additionally, VA examination is needed to address functional limitations during flare-ups. The September 2017 VA examiner reported that "pain, weakness, fatigability, or incoordination could significantly limit functional ability/ROM during flare-ups, or when the joint is used repeatedly over a period of time," but stated, without rationale, that he was "unable to provide an opinion as to how much this could decrease ROM & functional ability without resorting to mere speculation." Accordingly, upon remand, if the examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups based on the Veteran's descriptions of his additional loss of function during flare-ups, information gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares. Id. VA examination is also needed to address the nature and etiology of the Veteran's knee and hips disabilities. First, while VA examiners noted that the Veteran has not reported radicular symptoms, it is not clear whether the Veteran's lower extremity pain is demonstrative of a neurological impairment of the service-connected back disability. Second, the May 2008 and January 2010 medical opinions regarding the etiology of the Veteran's knee and hip problems are predicated on the inaccurate factual premise that the Veteran's Parkinson 's disease preexisted his knee and hip problems. The examiners opined that the Veteran's current knee and hip problems are related to his nonservice-connected Parkinson's Disease because Parkinson's Disease, diagnosed in 2004, preexisted knee and hip problems. The January 2010 examiner explained that Parkinson's disease caused increased weight bearing from the right hip pain and right foot drag, which led to the current knee disability. Significantly, private treatment records show that the Veteran has had a longstanding history of knee and hip problems dating back to 1995, nearly a decade prior to the Veteran's first symptoms of Parkinson's Disease. See, e.g., Private treatment records (November 1, 1995; November 30, 2002). Accordingly, VA examination is needed to address the Veteran's theory that his service-connected back disability caused his current knee and hip disabilities. The Veteran contends that his Parkinson's Disease is related to in-service exposure to Agent Orange. The Veteran explained that he came into contact with the herbicide as a generator operator while working on generators from the Republic of Vietnam in Europe. Upon remand, the AOJ is to obtain the Veteran's service personnel records and conduct any development necessary to corroborate the Veteran's assertion that he worked on power generators from the Republic of Vietnam. The Veteran's claim for TDIU is also remanded, as it is inextricably intertwined with his claim for an increased rating for lumbosacral strain with arthritis. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of the severity and the impact of his service-connected disabilities on his ability to work. 2. Obtain the Veteran's service personnel records and conduct any development necessary to corroborate the Veteran's assertion that he worked on power generators from the Republic of Vietnam. 3. Then, arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected back disability. The joints involved must be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The examiner is also to describe e all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner is to ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner is to estimate the functional loss (in terms of lost range of motion) based on all the evidence of record. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is to also address whether the Veteran's experiences any neurological impairments associated with his back disability. The examiner is to specifically address whether back pain that radiates into the Veteran's hips and lower extremities is demonstrative of a neurological impairment associated with his back disability. 4. Schedule the Veteran for a VA examination by an appropriate medical professional to ascertain the nature and etiology of the Veteran's current knee and hip disabilities. The examiner must specifically address whether it is at least as likely as not that the Veteran's service-connected back disability caused his current knee and hip disabilities. As discussed above, the Board notes that while the May 2008 and January 2010 VA examiners opined that the Veteran's Parkinson's Disease causes his knee and hip problems, private treatment records show that the Veteran has had knee and hip problems many years before he was diagnosed with Parkinson's Disease. The examination report must include a complete rationale for all opinions expressed. 5. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs