Citation Nr: 21071981 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-29 552 DATE: December 1, 2021 REMANDED The issue of entitlement to service connection for a left foot disability is remanded. The issue of entitlement to service connection for a left knee disability is remanded. The issue of entitlement to service connection for traumatic brain injury (TBI) is remanded. The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to service connection for an eye condition is remanded. REASONS FOR REMAND The Veteran served on active duty from May 14, 1984 to September 17, 1984 and from October 2002 to February 2003 with additional service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. 1. The issue of entitlement to service connection for a left foot disability is remanded. 2. The issue of entitlement to service connection for a left knee disability is remanded. The Veteran contends that he has a left foot disability and left knee disability that are directly related to his active service. The medical treatment records show that the Veteran has been diagnosed with left knee arthritis and has been treated for left foot pain. In addition, the Veteran's DD 214 reflects that he was awarded the parachutist badge. The Board concludes that the threshold for providing an examination has been met, and that the issues must be remanded so that the Veteran may be provided an examination as to his claimed left foot disability and left knee disability. See 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159 (c) (4) (i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. The issue of entitlement to service connection for TBI is remanded. The Veteran contends that he has TBI that is directly related to his active service. Specifically, the Veteran testified that he was kicked in the head and assaulted during his active service. The medical treatment records reflect that the Veteran has been treated for headaches. Additionally, the Veteran's service treatment records reflect that he was kicked in the head during his active service and was treated for head trauma. The Board concludes that the threshold for providing an examination has been met, and that the issue must be remanded so that the Veteran may be provided an examination as to his claimed TBI. See 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159 (c) (4) (i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 4. The issue of entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he has bilateral hearing loss that is directly related to his active service. Specifically, the Veteran testified that his bilateral hearing loss is related to being kicked in the head during his active service. The Veteran was provided a VA examination related to his bilateral hearing loss in November 2017. The VA examiner opined that the Veteran's bilateral hearing loss is less likely than not caused by or a result of an event in service. As a rationale for that opinion, the examiner explained that the Veteran's bilateral hearing acuity was within normal limits at entrance and separation from active service and did not show a significant threshold shift during his active service. Under applicable law, the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran has presented competent and credible evidence of being kicked in his head. The VA examiner essentially based the negative nexus opinion on the fact that the Veteran's service treatment records do not show an in-service hearing loss. The examiner did not explain why evidence showing an in-service hearing loss is required to determine that the Veteran's hearing loss was incurred in active service or is otherwise etiologically related to his active service, to include the reported head trauma. The Board therefore finds the November 2017 VA examination to be inadequate, and that a remand is required so that an addendum opinion may be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 5. The issue of entitlement to service connection for an eye disability is remanded. The Veteran contends that he has a left eye disability that is directly related to his active service. Specifically, the Veteran testified that his current left eye disabilities are related to being kicked in the head during his active service. The Veteran was provided a VA examination in September 2017. The VA examiner diagnosed the Veteran with dry eyes and cataracts. The VA examiner opined that the Veteran's eye disability is less likely than not cause by or a result of an event in service. As a rationale for that opinion, the examiner explained that at a recent examination the Veteran had correctable vision to 20/20 with no vision loss and no ocular pathology related to an injury in either eye. Additionally, the VA examiner explained that there was no reported injury during the Veteran's active service. A review of the Veteran's service treatment records reflect that he was assaulted in June 2000, during a period of active duty for training (ACDUTRA). Additionally, the service treatment records reflect that the Veteran suffered a left orbital contusion. As such, the Veteran's service treatment records reflect an in-service event and injury related to his left eye. Therefore, the September 2017 VA examination is inadequate for decision-making purposes and the issue must be remanded for another opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any left foot disability and/or left knee disability. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for any left foot disability and/or left knee disability demonstrated since service, found on current examination or in the record. (b.) For each left foot disability and/or left knee disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran's service or is otherwise etiologically related to the Veteran's service, to include parachute jumping during his active service. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any TBI. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for any TBI disability demonstrated since service, found on current examination or in the record. (b.) If the Veteran has a current diagnosis of TBI, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran's service or is otherwise etiologically related to the Veteran's service, to include being kicked in the head during his ative service. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hearing loss is at least as likely as not (50 percent probability or greater) related to his in-service head trauma. (a.) The clinician must note that, under applicable law, the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, the fact that there are no audiometric test results showing that the Veteran had in-service hearing loss is not on its own a sufficient basis for determining that the Veteran's current bilateral hearing loss is not etiologically related to his active service. The clinician's opinion should reflect consideration of whether, given the in-service head trauma, the evidence establishes that the Veteran's bilateral hearing loss was incurred in active service or is otherwise etiologically related to his active service, such as being the delayed result of the in-service head trauma. See 38 C.F.R. § 3.303 (d). 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left eye disabilities are at least as likely as not (50 percent probability or greater) related to his in-service head trauma and left orbital contusion. 5. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.