Citation Nr: 21001344 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-35 390 DATE: January 7, 2021 ORDER Service connection for left ear hearing loss disability is granted. REMANDED Service connection for left ankle sprain is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, her left ear hearing loss disability is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1991 to March 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA). Entitlement to service connection for left ear hearing loss disability and a left ankle disability were denied by the Board in a December 2018 Board decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision pursuant to an October 2019 Joint Motion for Partial Remand (JMR). The Board remanded the issues in February 2020; they are once again before the Board and have been re-assigned to the undersigned. Additional evidence, including an October 2020 VA hip examination, was received following the last adjudication in this case. As this evidence is not relevant to the issues currently before the Board, a waiver of agency of original jurisdiction (AOJ) consideration is not required. Service connection for left ear hearing loss disability is granted. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Hearing loss will be considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). The Veteran worked as a telecommunication operator for over seven years and has asserted that she was exposed to a variety of extremely loud noises, to include via radio transmissions, background noise, and different high frequency beeps and tones. In support of her claim, she submitted two statements from family members who recall her having difficulty hearing during and since service. See Sept. 2020 statements from B.S. and C.K.. The Veteran has a left ear hearing loss disability for VA purposes. See, e.g., June 2014 VA examination. A July 2014 VA examiner opined that the Veteran’s left ear hearing loss disability is not due to service based on normal hearing at service separation. A March 2020 VA examiner opined that the Veteran’s left ear hearing loss disability was less likely due to service based on normal hearing at service separation and in the absence of a change in hearing or threshold shift during service. The VA examiner noted medical records that confirmed her job duty and report of loud noise exposure. It is well established that service connection for a hearing loss disability is not precluded where hearing was within normal limits on audiometric testing at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Thus, the Board finds both VA opinions are inadequate and given no probative weight. Conversely, a September 2015 private examiner opined that the Veteran’s left ear hearing loss disability is due to her service based on medical research that shows hearing loss can manifest many years postservice. This private examiner reviewed the Veteran’s service treatment records, including multiple audiograms, and determined that the Veteran’s left ear hearing loss disability began following separation from service based on acoustic trauma that occurred during service. After considering the September 2015 private opinion and the Veteran’s and family members’ lay statements, the Board finds that her left ear hearing loss disability is related to service, and service connection for such is warranted. REASONS FOR REMAND Entitlement to service connection for left ankle sprain is remanded. The February 2020 Board remand instructed a VA examiner to determine the nature and etiology of any ankle disability, to include pain; the remand specifically noted an October 2016 private treatment record that included a diagnosis of tibialis posterior tendonitis. A March 2020 VA examiner provided a diagnosis of left ankle sprain only. The examiner, noting that no serious injury was noted following the Veteran’s left ankle sprain during service, opined that, in the absence of any surgery or high-grade sprain during initial injury, it was highly unlikely that the Veteran’s symptoms persisted over so many years (despite noting that she complained of ankle pain for years). The Board finds this opinion inadequate as it failed to consider the Veteran’s statements. Additionally, following that examination, the Veteran submitted a September 2020 statement from her former spouse who stated that they met during service and that he witnessed her sprain her ankle in service on several occasions. Because they were in the same unit, he would help her move around, and she pushed herself to finish annual training requirements. They kept a supply of Motrin and naproxen for her pain, which she would sometimes take prior to daily exercise. “Since she has left the military[,] I have seen her in pain and not be able to walk (sic) due to pain in her ankle….” The Board also notes that the record raises a potential secondary service connection claim. The issue of entitlement to service connection for a bilateral knee disability was remanded by the Board in February 2020 and has yet to be adjudicated by the AOJ. However, a March 2019 private opinion regarding this knee claim raises the question of whether the Veteran’s left ankle sprain could be due to a knee disability. Accordingly, an opinion that addresses whether the Veteran’s left ankle disability is caused or aggravated by a knee disability is also necessary. The matter is REMANDED for the following action: 1. The AOJ should arrange for a VA medical opinion, with examination of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of the Veteran’s left ankle disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left ankle disabilities present during the appeal period, to include tibialis posterior tendinitis. (b.) Please identify and explain whether the Veteran has left ankle pain with functional impairment that is not attributable to any diagnosed disability. (c.) For each disability diagnosed and for pain with functional impairment not attributable to a diagnosed disability, is it at least as likely as not (50% or greater probability) that such disability or pain with functional impairment was incurred in or related to the Veteran’s military service, to include a documented in-service left ankle injury? (d.) For each disability diagnosed and for pain with functional impairment not attributable to a diagnosed disability, is it at least as likely as not (50% or greater probability) that such disability or pain with functional impairment was caused by a left and/or right knee disability? (e.) For each disability diagnosed and for pain with functional impairment not attributable to a diagnosed disability, is it at least as likely as not (50% or greater probability) that such disability or pain with functional impairment was aggravated by a left and/or right knee disability? The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner should consider and address as necessary the statements submitted in support of the Veteran’s claim that she injured her ankle multiple times during service and self-medicated in and since service. 2. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. Velez Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.