Citation Nr: 21067680 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-23 570 DATE: November 5, 2021 REMANDED An initial compensable rating for service-connected bilateral hearing loss is remanded. Service connection for a right knee condition is remanded. Service connection for a left knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to March 1982. This matter originally came before the Board of Veterans' Appeals (Board) from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a May 2019 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter was previously remanded by the Board for further development in October 2019. This matter is again before the Board. 1. An initial compensable rating for service-connected bilateral hearing loss is remanded. The Veteran believes that a compensable rating for service-connected bilateral hearing loss is warranted. See September 2021 Appellate Brief. The October 2019 Board decision noted the Veteran's report of ear pain and headaches related to his bilateral hearing loss. The Board remanded the issue for a VA hearing loss examination which, among other things, was meant to provide an opinion as to whether those and other symptoms were related to the Veteran's bilateral hearing loss. See October 2019 BVA Decision. The examination took place in January 2020. See January 2020 C&P Exam. However, among other things, the VA hearing loss examination did not address whether the Veteran's reported ear pain and headaches were related to his bilateral hearing loss. As such, the current medical evidence of record is insufficient to determine whether separate ratings for those symptoms are warranted. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, a remand is needed for a new VA examination. 2. Service connection for a right knee condition and service connection for a left knee condition are remanded. The Veteran believes that service connection for right and left knee conditions is warranted. See September 2021 Appellate Brief. The October 2019 Board decision remanded the issues for a VA bilateral knee examination which, among other things, was to consider all evidence, including the knee complaints during service. See October 2019 BVA Decision. The examination took place in January 2020. The examination found that neither knee condition was related to service because, among other things, there were no searchable complaints of the right knee condition and there was no evidence of meniscus tears. See January 2020 C&P Exam. The Board finds that the VA bilateral knee examination did not substantially comply with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the examination did not consider all the evidence. For example, the examination did not consider/was unable to consider service records showing a provisional diagnosis of a probable medial meniscal tear in relation to left knee pain and an assessment of a medial meniscus tear in relation to right knee pain. See December 2011 STR Medical. Therefore, a remand is needed for a new VA examination. The matter is REMANDED for the following action: 1. Update VA and private treatment records and obtain all outstanding VA records, including but not limited to, medical records from the Lafayette VA CBOC beginning in 2011 and medical records from the Ann Arbor VAMC beginning in January 2008. 2. Schedule one or more appropriate VA examinations to determine the current nature and severity of the Veteran's bilateral hearing loss disability. The examiner should also consider the impact that the Veteran's bilateral hearing loss disability may have on the Veteran's headaches and ear pain. The claims file, including a copy of this remand, should be made available to and should be reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the Veteran's bilateral hearing loss disability. This should also include the impact that the Veteran's bilateral hearing loss disability may have on the Veteran's headaches and ear pain. After a review of the record on appeal and an examination of the Veteran, the examiner is asked to provide the following opinions: (A) Identify all disabilities related to the Veteran's bilateral hearing loss disability, existing at any point during the pendency of the appeal (i.e., since August 2011), even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) The Veteran is also claiming that his service-connected bilateral hearing loss disability is affecting his headaches and ear pain. Ask the Veteran to identify any other symptoms related to his bilateral hearing loss disability. Ask the Veteran how long each of these symptoms has existed, how long they last for, and ask the Veteran for other specifics. Identify all disabilities related to these complaints during the appeal period. (C) For each identified disability, is it at least as likely as not (i.e., a 50 percent probability or greater) that the disability is related to or aggravated by the Veteran's service-connected bilateral hearing loss disability? For aggravation, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) Medical records from 2013 and 2014 showing the Veteran's report of hearing difficulty in groups and with noise. There was aura fulness. The Veteran was able to ventilate middle ear space with Valsalva. Valsalva was able to pop ears and improve hearing for minutes. There was bilateral ear fulness. The ears felt plugged. Medical records from 2015 showed the Veteran's report of decreased hearing and aural fulness. Medical records from 2017 and 2018 showed pain in the left ear. Medical records from 2019 showed the Veteran's report of intermittent pain. He may have had a eustachian tube dysfunction. Further information is provided. See March 2021 CAPRI. (2) A medical record from 2020 showing the Veteran's report that his spouse told him the TV was too loud. He was reading the examiner's lips during an examination and had trouble understanding. At church, it was hard to understand what they were saying. He had difficulty hearing clearly and did better with visual cues. Some re-instruction and retesting were needed to get valid results in the right ear. At the beginning of the appointment, the Veteran strained to hear, would not respond to his name being called at a loud volume in the waiting room, and consistently said "what?" or would not even respond to questions asked. But, by the end of the appointment, the Veteran responded to everything that was said to him, even when the examiner's back turned and in a quiet voice, indicating that the beginning of the appointment may have been more due to a functional overlay than an organic hearing loss. See January 2020 C&P Exam. (3) Medical records from 2017 showing retraction problems with the left ear. Medical records from 2019 showed pain due to a probe tip put in the ear. Further information is provided. See November 2019 CAPRI. (4) A record from 2019 showing the Veteran's report of sharp pain in the ears which felt like a pencil was stuck inside. He was beginning to have headaches with the hearing loss. See October 2019 BVA Decision. (5) The Veteran's 2019 report of pain in the inner ear drum where there was a perforation and scarring. There was sharp pain, like a pencil was stuck in the ear and was pressed up against the ear drum. The Veteran was wearing cotton to muffle the sound going into the ear drum. The Veteran got headaches sometimes from the hearing loss. See May 2019 Hearing Transcript. (6) Medical records from 2013 showing slight hearing asymmetry, the Veteran's report of aural fulness, and Type C tympanograms. See October 2016 CAPRI. (7) A medical record from 2014 showing a longstanding intermittent "plugged" feeling in the ears. There was negative middle ear pressure. See October 2016 VA Examination. (8) A medical record from 2012 showing some difficulty understanding due to hearing loss. See May 2012 VA Examination. (9) Any and all other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. Schedule an appropriate VA examination for the Veteran's right and left knee conditions. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify all right and left knee related disabilities existing at any point during the appeal period (i.e., since August 2011) even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability had its onset in or is otherwise related to the Veteran's service? (C) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by any or all of the Veteran's service-connected disabilities (including but not limited to medications taken for the service-connected disabilities)? (D) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was aggravated beyond its natural progression by any or all of the Veteran's service-connected disabilities (including but not limited to medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran's service-connected disabilities (including but not limited to medications taken for the service-connected disabilities) caused or aggravated the Veteran's obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (F) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated any or all of the Veteran's right and/or left knee related disabilities including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. If yes, which ones? (G) For each identified arthritis disability, is it at least as likely as not (a 50 percent or greater probability) that the disability manifested to a compensable degree within one year following the Veteran's separation from a period of active service? (H) For each identified arthritis disability, is it at least as likely as not (a 50 percent or greater probability) that the disability was noted during service/within one year following the Veteran's separation from active service, with continuity of symptomatology since? (I) For each identified right knee disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by or aggravated beyond its natural progression by any or all of the Veteran's identified left knee disabilities (including but not limited to medications taken for the service-connected disabilities)? In addition to the other relevant evidence of record, the reviewing examiner is asked to consider and address as appropriate the following information with a caution that this list is not a substitute for a review of the record: (1) A record showing the Veteran's service-connected disabilities. See June 2021 Rating Decision Codesheet. (2) The Veteran's report that during service, he injured his knees playing basketball and injured them again when he fell from a ladder on a ship. The Veteran reported continued knee pain ever since service. See September 2021 Appellate Brief. (3) Medical records from 2013 showing osteoarthrosis and knee arthralgia. Medical records from 2015 showed bilateral knee arthralgia, which was greater in the right knee. Medical records from 2016 showed that x-rays from the year before revealed degenerative changes. Medical records from 2017 showed a body mass index of 28.13, knee arthralgia, and osteoarthritis. See March 2021 CAPRI. (4) A medical record from 2020 showing the Veteran's report that his knee problems began during service from all the shift drills. There were a few incidents where he injured his knees. The right knee was injured from falling down a ladder. The Veteran had to wear a cast for a few weeks. The left knee was injured from playing sports. While playing basketball, the Veteran fell and injured the knee. Everything on the ship was made of metal. See January 2020 C&P Exam. (5) A record from 2019 showing the Veteran's report that he injured his knees from playing basketball and from falling from a ladder during service. There had been pain ever since. In the 1980s, the Veteran bought his own braces due to pain, locking, and giving out. Service records showed complaints with both knees. See October 2019 BVA Decision. (6) The Veteran's 2019 report of numerous entries for knee pain in the service records. He had knee problems at 39 years old. He was seen for pain in both knees during service. He hurt his knee playing basketball during service. He also injured the knees during drills on the ship when he fell down one of the ladders. He had to wear a cast for six weeks on the right knee. The Veteran also had crutches and was put on light duty. He did physical therapy himself after the cast came off. They did not have physical therapy on the ship. There had been pain ever since the injuries. They were treated during service with over-the-counter medications. The pain was manageable for the longest time with the medications. The Veteran left service with pain. The Veteran's subsequent jobs allowed him to reduce standing, walking, and sitting, based on his knee pain. As such, he was able to perform those jobs. During the 1980s, the Veteran started using a knee brace due to the knee locking or giving out. That was still a concern currently. Self-medication was enough to deal with the pain. He did not see a doctor for the knees for a while after service. See May 2019 Hearing Transcript. (7) Medical records from 2012 showing that the knee pain may have been related to being overweight. See October 2016 CAPRI. (8) The Veteran's report that he had numerous treatments for the knees during service due to injuries. He had now been dealing with the issues for years. Due to the lack of availability of VA facilities and because he was a working father who had to provide for his children, he was unable to take off work to go to appointments for a long time after service. See May 2016 Form 9. (9) The Veteran's report that during service, the left knee was placed in a cast for six weeks. The doctors told him that he had a strain that needed to be operated on, but he opted out of the surgery and tried to heal the knee with the cast and took small steps to get back to normal. However, due to that decision, he still suffered with the condition and it led to his current diagnosis. The right knee had to compensate for the left knee being bad for all those years. The left knee should have been service connected because it resulted from falling off the ladder during service and the right knee should have been service connected because of overuse due to the left knee problems for many years. See September 2012 NOD. (10) Service records showing a fall in the shower, back injuries, an assessment of a MCL strain with severe pain after feeling a pop, an impression of a left knee strain after the knee popped out, an assessment of a recurrent left knee MCL strain, the Veteran's report of knee pain for some time, a provisional diagnosis of a probable left knee medial meniscus tear, an assessment of possible left knee torn cartilage, an impression of a right knee medial meniscus tear, left knee pain related to basketball, that the Veteran fell down a ladder, and injuries to the feet and ankle areas. Further information is provided. See December 2011 STR Medical. (11) The Veteran's report that during service, he took a fall down a steel stairway on a ship and landed on a steel deck. This resulted in the knee injuries shown in the service records. The Veteran did not continue to receive treatment for these conditions following service because he had to work for a living and did not have the luxury of ongoing treatment. See August 2011 VA 21-526. (12) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Readjudicate the issues on appeal. The AOJ should consider separate ratings, if warranted by the evidence of record. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.