Citation Nr: 21069463 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-63 850 DATE: November 18, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a right ear hearing loss disability is granted. REMANDED Entitlement to a disability rating in excess of 0 percent for a left ear hearing loss disability is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability is related to his active duty military service. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran currently has a right ear hearing loss disability as defined by VA regulation that is related to his in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1984 to January 1995. Most recently, in February 2020, the Board of Veterans' Appeals (Board) remanded the matters on appeal for additional evidentiary development. As a result of this development, the Veteran was awarded service connection for a hernia disability in a March 2020 rating decision. This constitutes a full grant of the benefits on appeal as to this issue; the claim is fully resolved and is no longer before the Board. See A.B. v Brown, 6 Vet. App. 35 (1993). The Board will discuss the remaining issues below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 addition, certain diseases, such as sensorineural hearing loss, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a right knee disability is granted. The Veteran maintains entitlement to service connection for a right knee disability due to wear and tear on his knees during physical training in service. The Board finds that the evidence of record supports a grant of service connection for a right knee disability. First, there is evidence of a current disability. Private treatment records document a horizontal oblique tear of the posterior horn of the medial meniscus extending to the junction of the anterior and posterior horns, as well as non-specific joint effusion. This diagnosis is also confirmed on the Veteran's February 2020 VA examination report. Second, there is evidence of an in-service event, disease, or injury, as the Veteran's service treatment records document treatment for a right knee strain in July 1990, to include being placed on a two-week medical profile. Further, he has competently and credibly described the continuity of right knee symptomatology since that time. Third, the Board finds that the probative evidence of record supports a finding that Veteran's right knee disability is related to his active duty service. In December 2019, the Veteran submitted a statement from his private, treating physician in which she indicates that the Veteran's current meniscal injury is of the type caused by physical training, including running and playing sports, activities which the Veteran participated in during his active duty service. The Board finds that this statement, in conjunction with the February 2020 positive nexus opinion provided by a VA examiner who reviewed the claims file and clinically evaluated the Veteran, provides supportive, probative evidence that the Veteran's right knee disability is at least as likely as not incurred in or caused by his active duty service. The Board acknowledges the presence of a negative nexus opinion, also provided by a VA examiner in February 2020. However, it is of no probative value as the examiner predicated her opinion on the fact that there was no "chronicity of care" following the July 1990 sprain. As the absence of "chronicity of care" since service is not adequate rationale for a negative etiological opinion, as it does not take into account the Veteran's lay statements regarding continuity, the Board affords this negative opinion no weight. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for a right knee disability is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). 2. Entitlement to service connection for a right ear hearing loss disability is granted. The Veteran maintains entitlement to service connection for right ear hearing loss due to hazardous noise exposure during active duty service. Initially, the Board finds that the Veteran has a current right ear hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385, as shown at the March 2020 VA examination. Next, the Board finds that the Veteran was likely exposed to hazardous noise while serving as a heavy construction equipment operator and multi-channel transmission systems operator. At issue is whether there is a nexus between the Veteran's current right ear hearing loss disability and his in-service noise exposure. Similar to tinnitus, sensorineural hearing loss is linked with nerve damage that most often occurs "when the tiny hair cells in the cochlea are injured." Fountain v. McDonald, 27 Vet. App. 258, 266 (2015). More specifically, in Fountain, the Court referenced medical and legal authority, and noted that chronic sensorineural hearing loss, as an organic disease of the nervous system, was due to a problem in the inner ear or in the auditory nerve between the inner ear and the brain and was commonly caused by chronic exposure to excessive noise, in addition to age related hearing loss. The Court noted that chronic sensorineural hearing loss caused by acoustic trauma resulted in damage to the inner ear and qualified as an organic disease of the nervous system under 38 C.F.R. § 3.309. Because the Veteran sustained nerve damage that caused his service-connected tinnitus and service-connected left ear hearing loss, by necessary logical inference, the Veteran sustained the same nerve damage to the inner ear that caused the current right ear sensorineural hearing loss. Based upon both medical and legal authority, the Board finds that the in-service acoustic trauma caused permanent nerve damage to the auditory nerve or inner ear, which denotes the onset of the current right ear sensorineural hearing loss in service. Such sensorineural hearing loss is a permanent disability that was incapable of actual improvement of the nerve damage because chronic sensorineural hearing loss either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic sensorineural hearing loss that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258. Notwithstanding the above, the March 2020 VA examiner determined that the Veteran's right ear hearing loss disability was less likely than not due to his military service, finding that the Veteran had a hearing loss disability that clearly and unmistakably preexisted his active duty service, and that this preexisting disability was clearly and unmistakably not aggravated by it. In McKinney v. McDonald, the United States Court of Appeals for Veterans Claims (Court) addressed whether hearing loss noted on a Veteran's entrance examination constituted a preexisting disability for VA purposes. 28 Vet. App. 15, 18-19 (2016). In vacating and remanding a Board decision denying the Veteran's claim, the Court held that the hearing loss was not a preexisting disability and the veteran was entitled to the presumption of soundness because the hearing loss noted on the Veteran's entrance examination did not meet VA's definition of "hearing loss" as defined pursuant to 38 C.F.R. § 3.385. Id. at 21. In the current case, the March 2020 VA examiner found that the Veteran displayed right ear loss at 6000 Hz on enlistment and used this finding as support for his determination that a disability clearly and unmistakably preexisted service. However, as this finding does not meet the requirements for a hearing loss disability under 38 C.F.R. § 3.385, by operation of law, VA is precluded from finding that the Veteran had a preexisting right ear hearing loss disability. He is presumed sound on enlistment. The Board could remand the issue for an additional opinion predicated upon the Veteran's presumed soundness on enlistment. However, this is unnecessary as the probative evidence of record reveals a currently diagnosed right ear hearing loss disability for VA purposes, in-service noise exposure, and sustained nerve damage that caused his service-connected tinnitus and service-connected left ear hearing loss, and by necessary logical inference, caused the current right ear sensorineural hearing loss disability. 38 C.F.R. § 3.159 (c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Based on the totality of the evidence, and with application of the benefit of the doubt rule of 38 U.S.C. § 5107 (b), the Board finds that the evidence of record provides an adequate basis on which to grant service connection for a right ear hearing loss disability. REASONS FOR REMAND Entitlement to a disability rating in excess of 0 percent for a left ear hearing loss disability is remanded. The Veteran maintains entitlement to a disability rating in excess of 0 percent for a left ear hearing loss disability. Unfortunately, another remand is required concerning this issue. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 1. The Board notes that the Veteran has submitted several private audiograms in support of his increased rating claim. The private audiogram results have been displayed in graphical form and have not been converted to an appropriate numerical form. The U.S. Court of Appeals for Veterans Claims (Court) has held that interpretation of a graphical audiogram is a finding of fact, to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). If the Board is unable to interpret the graphical audiogram due to unclear results or several possible interpretations, then the Board must remand the results for translation by an appropriate specialist. Savage v. Shinseki, 24 Vet. App. 259, 270 (2011). The Board finds that the graphical representations are unclear and may have several possible interpretations. Thus, the Board is unable to interpret the graphs, and further medical inquiry is necessary for a proper finding of fact to be rendered concerning the Veteran's level of hearing loss disability throughout the appeal period. Additionally, as the Board has granted service connection for right ear hearing loss in the above decision, remand is necessary to properly rate the Veteran's now service-connected bilateral hearing loss. The matter is REMANDED for the following action: 1. Obtain an interpretation of the Veteran's private audiogram results from a certified audiologist. Associate the interpreted reports with the claims file. 2. Re-evaluate the Veteran's increased rating claim for bilateral hearing loss. If any benefit remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative, allowing a reasonable amount of time for response. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.