Citation Nr: 21000949 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-34 311 DATE: January 6, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial disability rating in excess of 10 percent for a service-connected right knee degenerative joint disease prior to January 18, 2011, and in excess of 30 percent for a service-connected right total knee replacement from March 1, 2012, is remanded. Entitlement to total disability based on individual unemployability (TDIU) prior to March 1, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1972 to September 1976. The case was most recently before the Board in September 2017 when it was remanded for additional development. There has not been substantial compliance v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for bilateral hearing loss is remanded. The claim must be remanded again because the April 2018 VA opinion obtained after the September 2017 Board remand is inadequate. The VA examiner offered a negative nexus opinion, based in part on normal hearing at separation. The examiner also relied on an Institute of Medicine (IOM) study and referenced some conclusions from that study, but did not explain why the inconsistency in the IOM report. Specifically, the statement that that “definitive studies to address [late onset hearing loss] have not been performed.” See McCray v. Wilkie, 31 Vet. App. 243 (2019). Further, while the examiner identifies other possible etiologies for the Veteran’s hearing loss, the examiner did not adequately exclude the Veteran’s exposure to noise in service or the reports of hearing loss beginning in 1970 and the 1970s, as the origin of the Veteran’s current hearing loss. Notably, the examiner did not comment on the lay statement a fellow serviceman dated in September 2010 and dismissed the lay statements of hearing loss by the Veteran based upon a lack of objective evidence (audiogram) at separation from service. Thus, the claim must be remanded for an adequate medical opinion. 2. Entitlement to an initial disability rating in excess of 10 percent for a service-connected right knee degenerative joint disease prior to January 18, 2011, and in excess of 30 percent for a service-connected right total knee replacement from March 1, 2012, is remanded. The claim must be remanded because VA examinations conducted in April 2018 and November 2018 are inadequate. The April 2018 examination does not attempt to provide estimations regarding the range of motion after repetitive use. In addition, the examination report was inconsistent in its reports that the Veteran was unable to perform repetitive use testing and could not assess the functional loss with repetitive use over time while also noting that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There is no indication whether the range of motion results reported were passive or active and there was no indication of range of motion testing with weight-bearing and non-weight bearing. The November 2018 examination was inadequate because noted reports of additional functional impairment related to repeated use over time and during flare up, but did not attempt to estimate the related loss of range of motion. Finally, an adequate response was not provided with regard to whether the measurements of the knee obtained in the April and November 2018 examinations would have been similar if taken at the time of the prior July 2016 examination as ordered by the Board in the prior remand. Rather the examiner noted in April 2018 that it would be mere speculation to discuss the range of motion examination of another provider without direct visual. 3. Entitlement to TDIU prior to March 1, 2012, is remanded. The TDIU matter must be remanded as inextricably intertwined with the claims that need further development. Review of the claims file show a notation that the Veteran underwent audiometric studies in April 2017 and that an Audiometric Summary was available in CPRS Tools/Audiogram Display. On remand, attempt to obtain and associate with the claims file the April 2017 audiogram available in CPRS Tools/Audiogram Display and complete VA treatment records regarding the Veteran dated since July 2020. See 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the April 2017 audiogram available in CPRS Tools/Audiogram Display and complete treatment records regarding the Veteran dated from July 2020 to the present. 2. Thereafter, obtain a medical opinion from an appropriate VA medical examiner on the likely etiology of the Veteran's bilateral hearing loss disability. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that opinions cannot be provided without an examination, the Veteran should be scheduled for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Based on a review of the record, the examiner should address the following: Is it at least as likely as not that the Veteran's bilateral hearing loss disability was incurred in or related to service? In rendering the opinion, the examiner must consider all lay and medical evidence, including the Veteran’s statements at the November 2009 VA examination reporting hearing loss in the right ear from 1979, bleeding from the right ear, noticing “hollow” sounds afterward, and undergoing ear surgery around 1999. Consider also his military MOS as repair shop machinist and, thus, the high probability of hazardous noise exposure. His denial at the November 2009 VA examination of civilian occupational or recreational noise exposure. Additionally, consider and address lay statements on the onset of his hearing problems in the late 1970s, including via a September 2010 statement by a fellow serviceman. Consider all audiological and ear disease examinations. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. If the examiner relies to any extent upon the IOM study, noted above, the examiner must (a) identify the medical text’s qualifying or contradictory aspects (“There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure”); and (b) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran’s case as to the question of whether delayed onset hearing loss is as likely as not etiologically related to in-service noise exposure. The examiner may discuss this Veteran's documented complaints and clinical history in support thereof, but must not reject medical history unless otherwise incongruous with the record and explaining why any history is rejected. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current severity of his right knee disability. Copies of all pertinent records should be made available to the examiner for review. The appropriate DBQs should be filled out for this purpose, if possible. The examiner should specifically test the Veteran's right knee ranges of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If 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 this is so. The examiner must attempt to estimate additional functional loss of the right knee due to repetitive use and flare-ups. In making this determination the examiner is specifically directed to ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding the Veteran's flares by any available means, to include the Veteran's lay statements and all other evidence of record. In addition, the examiner must review the prior July 2016 VA knee examination and opine as to whether the above-requested measurements would have been similar if taken at the time of that prior examination and if not, how they would have differed. Consider all pertinent lay and medical evidence. Provide a clear and comprehensive rationale for any conclusions. If any requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, Counsel 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.