Citation Nr: 21065956 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-55 252 DATE: October 28, 2021 REMANDED Entitlement to service connection for bilateral hearing loss, including right or left ear hearing loss, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to September 1975. These matters come before the Board of Veteran's Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript is on record. In November 2019, the Board reopened the Veteran's knee claims and remanded them as well as the Veteran's claim for bilateral hearing loss for VA examinations on their etiology. 1. Entitlement to service connection for bilateral hearing loss, including right or left ear hearing loss, is remanded. Initially, the Board notes the Veteran submitted correspondence in October 2020 indicating he wished to limit his claim for bilateral hearing loss to "unilateral hearing loss." However, as the Veteran did not specify to which ear the claim should be limited, the Board has developed the claim as one for bilateral hearing loss, to include either right ear or left ear hearing loss. Per the Board's November 2019 remand, the Veteran was provided a VA examination on the etiology of his hearing loss in January 2020. The examiner was asked to address the Veteran's military occupational specialty (MOS), as well as the Veteran's work in a manufacturing facility. The examiner included consideration of both the Veteran's MOS and reported noise exposure while working at a manufacturing facility but opined the Veteran's bilateral hearing loss is less likely than not related to service. The examiner rationalized because the Veteran's in-service hearing evaluations were within normal limits for VA purposes and because he had long history of noise exposure after service, given the lack of documentation of hearing loss in service, the Veteran's current hearing loss is less likely than not related to his in-service noise exposure. However, the Board finds this explanation inadequate for being based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The examiner states the Veteran's in-service hearing loss evaluations, including his 1975 separation hearing loss evaluation, were within normal limits. However, review of the Veteran's 1975 separation hearing loss evaluation shows the Veteran exhibited hearing thresholds of 30 decibels at 500 Hz and 25 decibels at 1000 Hz, which indicate some degree of hearing loss for VA purposes. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, the examiner's negative rationale is based on an inaccurate factual premise. Furthermore, as the Board previously noted, absence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 15860 (1993) (setting out the requirements for establishing service connection for hearing loss). Accordingly, another opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. These claims must be remanded to ensure compliance with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Per the Board's November 2019 remand, a VA examiner was to opine on the etiology of the Veteran's knee disabilities, considering both the Veteran's reported 1974 knee injuries: (1) falling approximately five feet off a truck and landing on both of his knees in early 1974 and (2) falling approximately 20 feet off the top of a building under construction as it collapsed, landing feet first, injuring his left knee and back in October 1974. However, despite including in the evidence review section a private treatment note acknowledging both of the Veteran's in-service injuries, the examiner's corresponding rationale pertains only to the October 1974 incident. As such, the opinion does not comply with the Board's prior remand and another VA knee opinion is warranted. The Board acknowledges there is only evidence of in-service treatment for the October 1974 incident; however, examiners may not ignore a Veteran's competent reports of what occurred during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The matters are REMANDED for the following actions: 1. Obtain an addendum opinion to determine the nature and etiology of the Veteran's bilateral hearing loss. The claims folder and a copy of this remand must be made available to the examiner and reviewed in conjunction with the examination. The need for an in-person examination is left to the examiner's discretion. After a thorough review of the claims file, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss, right ear hearing loss or left ear hearing loss, was incurred in or is otherwise related to service, to include performing duties in a motor pool without hearing protection bilaterally and approximately five months in a manufacturing facility without hearing protection on/in the Veteran's left ear, in addition to the Veteran's MOS. The examiner is also asked to address the Veteran's post-service noise exposure, to include construction equipment, heavy equipment, truck driving, factories, and shooting; but to not ignore that the Veteran reports wearing hearing protection post-service. The examiner is reminded that evidence of a current hearing loss disability (i.e., one meeting the requirements of38C.F.R. §3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss, despite the absence of documented hearing loss during service. Hensley, 5 Vet. App. at159. A complete rationale with clear conclusions, supporting data, and a reasoned medical explanation connecting the two must be provided for any opinion expressed. 2. Obtain an addendum opinion to determine the nature and etiology of any disability in the Veteran's left or right knees. The claims folder and a copy of this remand must be made available to the examiner and reviewed in conjunction with the examination. The need for an in-person examination is left to the examiner's discretion. After a thorough review of the claims file, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right and/or left knee disability was incurred in or is otherwise related to service, to include (1) falling approximately five feet off a truck, landing directly onto his knees AND (2) falling approximately 20 feet and landing feet first. The examiner is reminded that pain alone may qualify as a disability, if the pain reached the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The examiner is asked to address the Veteran's reported post-service knee injuries, to include a 1988 incident involving the left knee and the corresponding surgery, a 2000 incident involving the left knee, and a 2015 incident involving the right knee and the corresponding surgery, and include their relationship to the Veteran's claimed knee conditions in his or her opinion's rationale. The examiner is reminded that medical opinions must be based upon consideration of a Veteran's prior medical history and examination, and describe the disability at issue in sufficient detail, including how intercurrent events may affect that disability, to allow the Board to make a fully informed decision. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). A complete rationale with clear conclusions, supporting data, and a reasoned medical explanation connecting the two must be provided for any opinion expressed. (Continued on the next page) 3. Then, readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, Associate 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.