Citation Nr: 20006965 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-06 621 DATE: January 28, 2020 ORDER 1. Service connection for a left ear hearing loss disability is granted REMANDED 2. Entitlement to service connection for left knee chondromalacia is remanded. 3. Entitlement to service connection for a right hearing loss disability is remanded. FINDING OF FACT The Veteran’s left ear hearing loss disability became manifest in service and is currently manifest. CONCLUSION OF LAW Service connection for a left ear hearing loss disability is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1976 to August 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) rating decision. 1. Service connection for a left ear hearing loss disability is granted. Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases (to include sensorineural hearing loss (SNHL) as an organic disease of the nervous system) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for organic disease of the nervous system). 38 C.F.R. § 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology since service. 38 C.F.R. § 3,303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran’s DD Form 214 shows that his military occupational specialty (MOS) was Lance Missile Crewman; it may reasonably be conceded that he was exposed to significant level noise in service. On March 1976 Enlistment Examination, the Veteran’s ears were “normal on clinical evaluation; and in a contemporaneous report of medical history, he denied ever having had ear trouble or hearing loss. Induction audiometry found all puretone threshold in the relevant frequencies to be normal (all 15 decibels or lower). On March 1979 service separation examination audiometry puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 35 25 15 30 30 Left 40 25 15 15 25 [Reflecting a left ear hearing loss disability, by the 40 decibel puretone threshold at 500 Hertz (Hz).]. On December 2014 VA examination audiometry, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 Right 25 30 25 25 35 Left 30 35 35 80 65 Left ear sensorineural hearing loss (SNHL) was diagnosed. The examiner opined the Veteran’s hearing loss was less than likely as not related to service, noting (inaccurately) that the Veteran’s enlistment and separation audiograms showed normal left ear hearing. The examiner opined postservice occupational noise was the more likely etiology for the Veteran’s left ear hearing loss. It is not in dispute that the Veteran has a left ear hearing loss disability (as defined in 38 C.F.R. § 3.385); it was confirmed by official audiometry. And the record also shows that a left ear hearing loss disability became manifest in service. Under 38 C.F.R. §3.303(b), when a chronic disease (such as SNHL, as an organic disease of the nervous system) becomes manifest during service, any subsequent manifestation of such is to be considered service-connected (unless clearly shown to be due to intercurrent cause). Here, there is no such evidence (the VA examiner’s opinion suggesting intercurrent cause being based on an inaccurate factual premise). Consequently, all requirements for establishing service connection are met. Service connection for left ear hearing loss is warranted. REASONS FOR REMAND 2. Entitlement to service connection for left knee chondromalacia. The Veteran contends that his current knee disability is due to an injury in service. His service treatment records (STRs) document a left knee injury, complaints, and treatment (with notation of a strained ligament). Following service, the earliest documentation of left knee pathology is in March 2012 when osteoarthritis and meniscal pathology were noted. On December 2014 VA examination, the examiner found that the Veteran’s current left knee chondromalacia is unrelated to his left knee strain in service. However, the opinion appears based on an incomplete and inaccurate medical history; while the provider noted two occasions when the Veteran was seen in service, further occasions when he was seen for knee complaints are documented in the STRs, including beyond the date when the examiner noted the injury was “resolving”. The rationale also does not identify an alternate etiology for the left knee disability. Accordingly, the opinion is inadequate for rating purposes, and an examination to obtain an adequate advisory medical opinion is necessary. 3. Entitlement to service connection for right ear hearing loss is remanded. The Veteran contends that he has a right ear hearing loss disability that was On March 1979 service separation examination audiometry, right ear puretone thresholds at 500, 3000, and 4000 Hz were, respectively, 35, 30, and 30 decibels To substantiate a claim of service connection, however, there must evidence of a current disability for which service connection is sought). And hearing loss disability must be established by audiometry in accordance with 38 C.F.R. § 4.85. On December 2014 VA examination right ear audiometry did not find a hearing loss disability (as defined in 38 C.F.R. § 3.385). A November 2015 North Little Rock VANPH audiology consult found speech recognition score of 92 percent (suggesting the Veteran may now have a right ear hearing). However, the record does not show that the examination was conducted in accordance with 38 C.F.R. § 4.85. Accordingly, the record suggests, but does not show, that the Veteran has a current right ear hearing loss disability. Consequently, an examination to confirm whether the Veteran has a current right ear hearing loss disability is necessary. The matters are REMANDED for the following: 1. Ask the Veteran to identify the providers of any evaluations or treatment he received for his left knee since service (records of which are not already in the claims file) and to submit authorizations for VA to secure records of any such private evaluations and treatment. Secure for the record complete clinical records of the evaluations and treatment from all providers identified, specifically including any VA records not already in the claims file. 2. Then arrange for the Veteran to be examined by an orthopedist to determine the nature and likely etiology of his current left knee disability. The examiner must review the Veteran’s claims file (to include this remand), and upon examination and interview of the Veteran, provide responses to the following: (a) Identify (by diagnosis) each left knee disability entity found (or shown by the record during the pendency of this appeal). (b) Identify the likely etiology for each left knee disability diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that it is etiologically related to the Veteran’s service, and his activities, reported injuries, and documented complaints, treatment, and diagnoses therein? (c) If a diagnosed left knee disability is determined to be unrelated to the Veteran’s service, identify the etiology considered more likely (and explain why that is so). Include rationale with all opinions, citing to supporting factual data and medical literature, as deemed appropriate. The rationale must acknowledge all of the Veteran’s left knee complaints throughout his service. 3. Also arrange for an audiological examination of the Veteran (with audiometric studies) to determine whether he now has (during the pendency of this claim has had) a right ear hearing loss disability (in accordance with 38 C.F.R. § 3.385), shown by audiometry conducted in accordance with 38 C.F.R. § 4.85. 4. If a right ear hearing loss disability is found pursuant to the development in #3, above, award service connection for right ear hearing loss disability (see 38 C.F.R. § 3.303(b)). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Law Clerk for the Board Norman R. McNeal The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.