Citation Nr: 21065670 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-17 225 DATE: October 27, 2021 REMANDED Entitlement to service connection for a right wrist disability is remanded. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to June 27, 2019, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1969 to July 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from October 2012 (right wrist) and December 2014 (bilateral hearing loss) rating decisions of the Department of Veterans Affairs (VA). In June 2019, a videoconference hearing was held before the undersigned. Later in June 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for further development of the claims. As a result of the development, a March 2020 rating decision granted a 30 percent rating for bilateral hearing loss, effective January 28, 2020. The case was thereafter returned to the Board. An October 2020 Board decision granted a 30 percent rating for bilateral hearing loss from an earlier effective date of June 27, 2019, and denied service connection for a right wrist disability. The Veteran appealed the Board decision in part, regarding service connection for a right wrist disability and a higher rating before June 27, 2019 for bilateral hearing loss, to the United States Court of Appeals for Veterans Claims (CAVC). A June 2021 CAVC Order granted a June 2021 Joint Motion for Partial Remand (JMPR) of the parties, thereby vacating the Board's decision as to the right wrist claim and the claim for a higher rating prior to June 27, 2019 for bilateral hearing loss and remanding those matters to the Board for action consistent with the terms of the JMPR. 1. Entitlement to service connection for a right wrist disability The parties agreed that the January 2020 VA examination report upon which the Board relied in its October 2020 decision was inadequate, because the examiner did not explain why the Veteran's diagnosed wrist disability was not caused by service including any injury or overuse in service. The matter was remanded for the Veteran to be afforded an examination addressing whether his right wrist disability was caused by service, to include an alleged fall therein. 2. Entitlement to a rating in excess of 10 percent prior to June 27, 2019, for bilateral hearing loss The parties agreed that the Board gave inadequate reasons for assigning a 30 percent rating from June 27, 2019. The Board's award was based on a finding that there was a significant puretone threshold shift in both right and left ears between the VA audiological examinations of December 2014 and January 2020, and yet a private audiological report dated in March 2016 reflected threshold shifts that were slightly greater than those of January 2020 (albeit without speech discrimination testing). The parties indicated that the Board's determination that the data did not show a significant shift between December 2014 and March 2016 was not based on any independent medical evidence, in violation of Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991). The matter was remanded in part for the Board to address the severity of the Veteran's hearing loss disability based on independent medical evidence. The parties also found that the Board provided insufficient reasoning when it required an audiometric examination in compliance with 38 C.F.R. § 4.85 (which requires VA examinations to conduct a Maryland CNC speech discrimination test for adequate evaluations) in order to discern the effective date of the Veteran's rating. The Board essentially rejected the private March 2016 audiometric evaluation report because it failed to include speech discrimination testing to be found adequate for rating purposes. As observed by the parties, the effective date is "the earliest date as of which it is ascertainable that an increase in disability had occurred," per 38 U.S.C. § 5110(b)(3), that is controlling, and to the extent that the provision of 38 C.F.R. § 4.85(a) is read to require an effective date to be set in accordance with the date of a Maryland CNC test, it conflicts with the governing statute. Swain v. McDonald, 27 Vet. App. 219, 223-25 (2015). The Court in Swain held that the effective date for hearing loss may be earlier than the date of an audiometric test that satisfies the criteria under 38 C.F.R. § 4.85. In other words, when awarding an increased rating, the Board must consider when the increase in the disability can be ascertained, not merely the date of the medical report. Considering the foregoing discussions, a retroactive medical opinion addressing whether, and if so when, it was factually ascertainable that an increase in the Veteran's hearing loss disability warranting a higher rating had occurred. Finally, it was observed that the effective date of June 27, 2019 was assigned because the Board found there was worsening of the bilateral hearing loss at the time of the Board hearing on that date. The hearing, however, was conducted on June 17, 2019. Thus, there appears to have been a typographical error made which should be rectified on remand. (Such matter may be moot as to benefit paid, but merits technical correction.) The matters are REMANDED for the following: 1. Arrange for a VA examination of the Veteran by an appropriate clinician (in orthopedics) to determine the nature and likely etiology of his right wrist disability status post total wrist fusion. The claims file must be reviewed by the examiner, and all clinical findings must be reported in detail. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability is etiologically related to the Veteran's service from January 1969 to July 1970, to include the reported stress placed on his hand/wrist via his duties loading Howitzer artillery in Vietnam for over a year (which entailed the jamming of rounds into the guns with his right hand) and the use of his hands to break his fall when he was thrown by incoming fire (as reported on a VA examination in October 2012). In furnishing the opinion, the examiner should review the lay statements of the Veteran and his wife describing the use of his right hand/wrist during service in loading Howitzers and in the incident (reported on October 2012 VA examination) when he used his hands to break a fall when thrown during incoming fire (he said he received ACE wraps for the wrist and returned to duty). The examiner should consider the lay statements in which the Veteran alleges his post-service occupation as a heating, ventilation, and air conditioning (HVAC) technician for decades aggravated his original wrist injury in service. The examiner should consider how such lay statements comport with generally accepted medical norms. If a statement is rejected as not credible, there must be explanation why that is so (cite to clinical findings/medical principles that support that conclusion). The examiner is advised that the absence of documentation during or after service cannot be the sole basis for rejecting a possible nexus to service-connected disability but providing an [alternate] likely etiology (beyond any assertion that there was an absence of documentation) may overcome this. The provider is advised that the lack of contemporaneous medical documentation (e.g., of a right wrist injury from a fall during combat service) is not fatal to his claim, and that the lack of such records is one factor among many that must be weighed in determining whether the event, injury, or disease occurred. The opinion must include rationale that cites to supporting medical principles and factual data. If the examiner determines that the opinion sought cannot be given without resort to speculation, (to satisfy legal requirements) the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the examiner does not have the requisite knowledge or training). 2. Arrange for the Veteran record to be forwarded to an audiologist for review and a retroactive medical advisory opinion regarding the severity of the Veteran's bilateral hearing loss prior to June 2019. The examiner is asked to respond to the following: (a). Is it possible to ascertain, with a reasonable degree of medical certainty, that at some defined point during the period from December 2014 to June 2019 the Veteran's bilateral hearing loss had worsened to the approximate extent reflected on his January 2020 VA audiological examination (as opposed to the approximate level of hearing loss reflected on the December 2014 VA examination)? If so, identify when such worsening was first shown. The opinion should consider the lay statements of the Veteran and his wife, including those in December 2014, March 2016, and June 2019 (hearing testimony). (b). Is it possible to state, with a reasonable degree of medical certainty, that the level of severity of the Veteran's bilateral hearing loss at the time of a private audiological evaluation in March 2016 was consistent with (or approximate to) the level of hearing loss at the time of the January 2020 VA audiological examination, despite the absence of speech discrimination testing in March 2016? If so, render the opinion. The opinion should consider the lay statements of the Veteran and his wife, including those in March 2016 and June 2019 (hearing testimony). All opinions must include rationale that cites to supporting medical principles and factual data. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.