Citation Nr: 21001045 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-42 724 DATE: January 6, 2021 ORDER The application to reopen the claim of service connection for an acquired psychiatric disorder is granted. Service connection for a bilateral hearing loss disability is denied. REMANDED Service connection for an acquired psychiatric disorder is remanded Service connection for sleep apnea is remanded. Service connection for tinnitus is remanded. An evaluation in excess of 20 percent for degenerative arthritis of the spine is remanded. An evaluation in excess of 10 percent for left knee degenerative arthritis is remanded. An evaluation in excess of 10 percent right knee degenerative arthritis with scar is remanded. A compensable evaluation for left foot hallux valgus is remanded. A compensable evaluation for right foot hallux valgus is remanded. An evaluation in excess of 10 percent for left lower extremity radiculopathy is remanded. An evaluation in excess of 10 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. In a June 2016 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim of service connection for a manic-depressive reaction. The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year period. 2. Evidence received since the June 2016 decision relates to a previously unestablished fact necessary to substantiate the claim. 3. The Veteran does not have a current right ear hearing loss disability. 4. The Veteran had a preexisting left ear hearing loss disability that was not aggravated by service. CONCLUSIONS OF LAW 1. The June 2016 rating decision that denied service connection for a manic-depressive reaction is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. Evidence received since the June 2016 rating decision is new and material and the claim of service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5107; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to August 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board decision in March 2019 denied the Veteran’s claim of increased ratings for the spine, radiculopathy, knee and feet disabilities. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in May 2020, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, to vacate the Board’s decision and remand the case for readjudication in accordance with the JMR. The Board reopened the claims of service connection for hearing loss and tinnitus in the March 2019 decision. It remanded those claims as well as the claims of service connection for sleep apnea and for an acquired psychiatric disorder. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board recognizes that the Veteran’s attorney attempts to raise the issue of service connection for ingrown toenails as secondary to service-connected hallux valgus in a statement dated in September 2020. The Veteran and his attorney are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. Service Connection 1. Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder. The RO denied the Veteran’s claim of service connection for a manic-depressive reaction in a June 2016 rating decision, finding no inservice incurrence, no current disability, and no nexus. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The evidence received since the June 2016 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2017). For example, an August 2017 private psychiatric report was submitted. This new evidence addresses the reason for the previous denial; that is, a current disability, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. Service connection for a bilateral hearing loss disability. The Veteran asserts that he was exposed to hazardous noise in service and his hearing loss is related to that. The Veteran seeks service connection for a hearing loss disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that the Veteran does not have a current right ear hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Both VA and private records show no disability as defined by VA regulations. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). However, to establish a current hearing loss disability for VA purposes, hearing examination results must meet the standards of 38 C.F.R. § 3.385. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, the worst case VA audiology examination, which was conducted in December 2019, showed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 20 25 25 LEFT 35 25 25 35 30 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear, using the Maryland CNC word list. This shows that there is only one threshold 26 decibels or higher in the right ear, and no threshold of at 40 decibels. Accordingly, a current disability in the right ear is not present and therefore service connection cannot be granted. While the Veteran is competent to report difficulty with the Veteran’s hearing, the determination of a current hearing loss disability is derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Consequently, the Board gives more probative weight to the audiometric testing evidence. Next, the Board evaluates the Veteran’s left ear. At entrance to service, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 30 25 30 35 45 This shows a left ear hearing loss disability is shown on the entrance examination because the criteria for hearing loss to be considered a disability under 38 C.F.R. § 3.385 were met. The Veteran had a left ear hearing loss disability prior to entering service. If a disability is noted on a Veteran’s entrance examination, the Veteran cannot bring a claim for service incurrence for that disorder, but he may bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In that case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Service connection is warranted if the preexisting disorder was aggravated by a veteran’s active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2017). The burden is on VA to establish a lack of aggravation of the preexisting disability. VA must show that there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (b) (2017); see also Jensen, 19 F.3d at 1417; Wagner, 370 F.3d at 1089. “Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). In this case, service connection is not warranted. First, there is no probative evidence that the left ear hearing loss worsened during service. Second, even if it had, it is clear and unmistakable that service did not make the Veteran’s hearing loss worse. Specifically, the January 2020 VA examiner opined that hearing loss was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that the enlistment examination indicates mild to moderate hearing loss at all frequencies. However, a reference audiogram dated in November 1988 indicated hearing within normal limits indicating the possibility of a temporary threshold shift present at enlistment that recovered to normal. The examiner further reasoned that there is no complaint or treatment for hearing decrease in service treatment record or at separation. The examiner did note that exposure to hazardous noise was conceded. The examiner’s opinion is supported by the June 2016 VA examination report noting normal hearing through August 2014 and normal thresholds on the June 2016 examination. Thus, the lack of a separation medical examination is not prejudicial. The Board acknowledges the July 2017 Report of Consultation and Examination by Dr. P. Y. This report shows that the Veteran has bilateral hearing loss of 30 percent in each ear. Dr. P. Y. opined that this hearing loss is related to service. The Board finds this opinion is not probative evidence of a current hearing loss disability for either ear because it does not provide pure tone thresholds or word recognition scores using the Maryland CNC Test. Instead, he stated that the Veteran needed to attend an audiogram. Additionally, he used the wrong evidentiary standard for the left ear because he did not address whether there was an increase in severity of the hearing loss during service and whether there was clear and unmistakable evidence that it was due to the natural progression of the disease. First, Dr. P. Y. stated that the test employed to determine hearing loss was one in which the Veteran was in a room wherein normal day to day noise (air conditioner, computer, and soft background music) is introduced. Dr. Yocum stated that “256 cps, 512 cps stimuli” are employed along with spoken words, and whispered words at a distance of 5 feet. The Board finds this test is not probative because it does not conform to the test required by VA to ascertain hearing loss. There are no threshold results in decibels reported. Moreover the results of the spoken word test were not provided. As to the opinion, Dr. Yocum does not take into account the hearing loss that pre-existed the Veteran’s service, so he is rendering an opinion to an irrelevant question. For the foregoing reasons, service connection is not warranted. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder is remanded. The Board cannot make a fully-informed decision on the issue of service connection for an acquired psychiatric disorder because no VA examiner has opined whether it is caused or aggravated by the pain associated with his service-conencted disabilities. 2. Service connection for sleep apnea is remanded. The Board cannot make a fully-informed decision on the issue of service connection for sleep apnea because no VA examiner has opined whether the Veteran’s morbid obesity is an “intermediate step” between his service connected orthopedic disorders, which he contends prevents him from exercising and being active, and his sleep apnea. Furthermore, the January 2020 examiner did not take into account the Veteran’s claims that he snored and awakened short of breath in service, which continued after service. 3. Service connection for tinnitus is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for tinnitus. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board directed the AOJ to obtain a medical opinion as to whether tinnitus is at least as likely as not etiologically related to service or manifest within a year of separation from service. No such VA opinion has been obtained. Although the AOJ obtained and opinion regarding the Veteran’s hearing loss and ostensibly tinnitus, the rationale does not address tinnitus at all. 4. An evaluation in excess of 20 percent for degenerative arthritis of the spine is remanded. A September 2020 private examination has been associated with the record. While the record contains a September 2017 VA examination regarding the Veteran’s spine disability, the examination results are so different that a possible worsening is indicated. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the spine disability. 5. An evaluation in excess of 10 percent for left knee degenerative arthritis is remanded. 6. An evaluation in excess of 10 percent right knee degenerative arthritis with scar is remanded. A September 2020 private examination has been associated with the record. While the record contains a September 2017 VA examination regarding the Veteran’s bilateral knee disability, the examination results are different, in particular in terms of instability. Therefore, a possible worsening is indicated. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the bilateral knee disability. 7. A compensable evaluation for left foot hallux valgus is remanded. 8. A compensable evaluation for right foot hallux valgus is remanded. 9. An evaluation in excess of 10 percent for left lower extremity radiculopathy is remanded. 10. An evaluation in excess of 10 percent for right lower extremity radiculopathy is remanded. In June 2020, VA associated with the claims file new and material VA treatment records associated with the foregoing six issues. The evidence was associated with the file after the last adjudication by the AOJ on these issues. In October 2020, VA sent the Veteran a letter informing him of his right to have the AOJ review the evidence before the Board does and asking if he would like to waive the AOJ initial review. The Veteran did not respond to the letter. Accordingly, the Board assumes the Veteran wishes to have the AOJ review the evidence in the first instance. The matters are REMANDED for the following action: 1. Ask the Veteran to identify and provide authorization to obtain any outstanding, relevant treatment records. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 2. Obtain and associate with the claims file outstanding, VA treatment records associated with the spine, knees, feet, and radiculopathy, including records knee treatment the Veteran identified from a VA clinic on the Marine Corps Logistics Base in Albany, Georgia. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is related to service, or secondary to his service-connected musculoskeletal disabilities through the intermediate step of obesity. Specifically, the examiner must opine as follows: (a.) Whether sleep apnea is at least as likely as not (50 percent probability or more) related to service, including the Veteran’s reports that he snored and awakened short of breath during service. (b.) Whether it is at least as likely as not (50 percent probability or more) that the service-connected musculoskeletal disorders of the spine, knees, and feet caused the Veteran's obesity; (c.) Whether it is at least as likely as not (50 percent probability or more) that the service-connected musculoskeletal disorders of the spine, knees, and feet aggravated the Veteran's obesity; (d.) If the answer to either of the foregoing is yes, whether it is at least as likely as not (50 percent probability or more) that the obesity that was caused or aggravated by musculoskeletal disorders, in turn, caused or aggravated the Veteran’s sleep apnea. Aggravation is defined as a worsening beyond the natural progression of the disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Obtain an addendum opinion from an appropriate clinician regarding: (a.) Whether the Veteran’s acquired psychiatric disorder is at least as likely as not proximately due to the pain associated with his service-connected disabilities; (b.) Whether the Veteran’s acquired psychiatric disorder is at least as likely as not aggravated beyond its natural progression by service-connected disability. (c.) The examiner is also to opine as to whether the Veteran has or had an “other specified trauma and stressor-related disorder,” as shown in a July 2017 private Disability Benefits Questionnaire. If so, the examiner is to opine as to whether it is related to service, including to the claim that he was nearly struck by shrapnel when a tent caught on fire and rounds blew up at Fort Lewis, Washington. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s tinnitus. The examiner must opine whether tinnitus at least as likely as not (50 percent or greater probability) is etiologically related to service or manifested within a year of separation from service, including as due to the hearing loss shown at entrance to service and during an early service audiogram. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected spine disability, including radiculopathy, and to provide medical opinions requested below. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must opine as to whether the current results represent a worsening of the disability from the September 2017 VA examination. The examiner is also asked to opine as to any conflicting results in terms of range of motion as well as severity of radiculopathy between the current examination and the July 2017 and September 2020 private examination reports. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disability, and to provide medical opinions requested below. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must opine as to whether the current results represent a worsening of the disability from the September 2017 VA examination, where no instability was found. The examiner is also asked to opine as to any conflicting results in terms of range of motion as well as instability between the current examination and the July 2017 and September 2020 private examination reports. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page)   8. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the issues for which new and material evidence had been received after the last SSOC. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.