Citation Nr: 21073863
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 16-11 002
DATE: December 10, 2021

ORDER

Entitlement to service connection for the Veteran's left knee condition is granted.

Entitlement to service connection for the Veteran's skin disorder is granted.

Entitlement to a rating in excess of 20 percent for the Veteran's bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for the Veteran's back disability, claimed as a pinched nerve in the neck, is remanded.

Entitlement to service connection for the residuals of brain-related blood draining, as secondary to the Veteran's service-connected bilateral hearing loss disability, is remanded. 

VETERAN'S CONTENTIONS

The Veteran contends that he should be granted service connection for a left knee disability, skin disorder, and a back disability. See July 2012 VA 21-526b, Veteran Supplemental Claim.  The Veteran explained that he injured his left knee and back when he made parachute jumps with equipment during service. See January 2020 Board Hearing Trans. pg. 8. The Veteran also stated that his skin condition began while he was stationed in Vietnam, where he was treated for his blisters. Id. at 22.

Additionally, the Veteran contends that he is entitled to a rating in excess of 20 percent for his bilateral hearing loss disability. See March 2016 VA Form 9. The Veteran stated that his hearing loss causes a driving impairment because he cannot hear emergency vehicles until they are very close to his car. See January 2020 Board Hearing Trans. pg. 4. The Veteran also reported that he had to have blood drained off his brain due to his hearing loss disability. Id. at 6.

FINDINGS OF FACT

1. The Veteran's left knee disability, currently manifested by knee pain and leg cramps, had its clinical onset during service. See July 2020 Board Hearing Trans. pg. 8; see also, November 1974 Service Treatment Record.

2. The Veteran has experienced a chronic skin condition, currently diagnosed as hypertrophic lichen planus of bilateral lower extremities, since service. See August 2013 VA Examination.

3. For the entire period on appeal, the Veteran had no more than Level VI hearing loss in his right ear and Level V in his left ear.

CONCLUSIONS OF LAW

1. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for a skin condition are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).

3. The criteria for a rating in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86(a), Diagnostic Code 6100; Long v. Wilkie, 33 Vet. App. 167 (2020) 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1969 to July 1970, July 1970 to January 1977. This matter comes before the Board of Veteran's Appeal (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran selected a hearing with a Veterans Law Judge on his March 2016 VA Form 9.  In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  

SERVICE CONNECTION

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

1. Left Knee Disability

After reviewing the evidence of record, the Board finds that service connection for the Veteran's left knee disability is warranted in the instant case. 

Turning to the evidence of record, the Board finds that the Veteran's left knee disability, currently diagnosed as severe osteoarthritis, was confirmed by an August 2013 VA examiner. See August 2013 VA Medical Opinion. Next, the Board finds that the evidence of record demonstrates an in-service incurrence of his left knee disability. Specifically, the Veteran has continuously stated that his left knee injury occurred when he was landing during parachute jumps with equipment, during service. See January 2020 Board Hearing Trans. pg. 9. The Veteran's military personnel records show that the Veteran was parachute rigger during service. See March 1966 Military Personnel Record. The Veteran also reported that he had numerous parachute jumps in service, which are confirmed by his duties as parachute rigger. See January 1977 Medical Examination and March 1966 Military Personnel Record. The Veteran's service treatment records (STRs) demonstrate complaints of left knee pain and cramps throughout service. See November 1974 Report of Medical History.  As a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including discussing his continuous symptoms of experiencing left knee pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's reports of the onset of pain in service, and continuous symptoms of left knee pain since his service to be credible in the instant case. 

Lastly, regarding a link between the Veteran's left knee disability and service, there is a positive opinion supporting the Veteran's claim. See June 2014 VA Treatment Record. Specifically, the June 2014 VA orthopedic surgeon opined that the Veteran's development of severe arthritis in his left knee was caused by his in-service airborne activities. Id. In support of this finding, the surgeon stated that the Veteran's airborne activities caused repetitive trauma to his left knee. Id. 

In addition to the positive nexus opinion, there is a negative opinion against the claim. The Board, however, affords the negative VA opinion little probative weight because it is based on inaccurate factual premise. The Board acknowledges that the August 2013 VA examiner opined that the Veteran's left knee disability was related to work-related injury that occurred in March 1976. See August 2013 VA Medical Opinion. However, the examiner failed to take into account the Veteran's in-service occupation as parachute rigger and whether the repetitive parachute jumps caused his left knee disability. Id. Instead, the examiner placed emphasis on the lack of in-service treatment for his left knee disability, and failed to take into consideration the lay statements regarding his in-service duties as a parachute rigger. Therefore, the Board finds that this opinion is inadequate because the examiner did not adequately explain his findings and did not consider the Veteran's lay statements regarding in-service parachute jumps during service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007).

Based on the Veteran's credible lay statements attesting to the numerous parachute jumps in service and the positive nexus opinion, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a).   

2. Skin Disorder

After reviewing the evidence of record, the Board finds that service connection for the Veteran's skin disorder is warranted in the instant case. 

Turning to the evidence of record, the Board finds that the Veteran's skin disorder, diagnosed as hypertrophic lichen planus of the bilateral lower extremities, was confirmed by an August 2013 VA examiner. See August 2013 VA Examination. Next, the Board finds that the evidence of record demonstrates an in-service onset of this skin disorder. Specifically, the Veteran stated that his skin disorder began before he was sent to Vietnam and has persisted since service. See January 2021 Board Hearing Trans. pg. 22. As a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including discussing his continuous symptoms of blisters on his lower extremities since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's reports of the onset of pain in service, and continuous symptoms of blisters since his service to be credible in the instant case.

Lastly, regarding a link between the Veteran's skin disorder and service, the Board finds that, as reported by the Veteran, his blisters began in service and has continued to the present. See January 2021 Board Hearing Trans. pg. 22. The Veteran stated that the blisters on his lower extremities look the same as his blisters from service. Id. As stated above, the Veteran is competent to identify his continuous skin disorder since service, establishing the onset of a chronic condition during service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno, 6 Vet. App. at 465.

In addition to the Veteran's statements, there is negative opinion evidence against the claim. The Board, however, affords the August 2013 VA opinion little probative weight because the examiner failed to address the Veteran's contentions regarding the chronic nature of the condition incurred in service. The August 2013 VA examiner found that the Veteran was not treated during service for this condition. Id. Additionally, the examiner noted that he was treated for the lesions on his lower extremities in December 2003, when he was treated after splashing battery acid on his legs. Id. However, the examiner did not address the Veteran's statements that the blisters on his legs looked the same as the ones from when he was in service. As the VA examiner failed to adequately consider the Veteran's reports of the incurrence of a chronic condition while still in service, the Board affords little probative weight to the August 2013 VA examination.

Based on the Veteran's lay testimony and the evidence of record, the Board finds each of element of service connection is met. Accordingly, service connection for the Veteran's skin disorder is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).

3. Bilateral Hearing Loss 

Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b).  The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz [Hz], shown on a puretone audiometry test. 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone. 38 C.F.R. § 4.85(c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). 

Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. § 4.86(b).  

Turning to the Veteran's increased rating claim for bilateral hearing loss, the relevant evidence of record consists of August 2013 and January 2019 VA examinations. The audiometric testing results from the August 2013 audiological examination revealed puretone thresholds of 45, 70, 75, and 80 decibels in the right ear and 50, 65, 75, and 80 decibels in the left ear at each of the specified frequencies. The puretone threshold average was 67.5 decibels in both ears. The Maryland CNC test revealed speech discrimination scores of 90 percent for the right ear and 88 percent for the left ear. Applying the foregoing results to Table VI yields a finding of Level III hearing loss in both ears. When hearing loss is at Level III hearing loss in both ears, a 0 percent rating is assigned under Table VII. 

The Veteran next underwent audiological evaluation in January 2019. The audiometric testing results from the January 2019 audiological examination revealed puretone thresholds of 55, 80, 85, and 80 decibels in the right ear and 50, 70, 75, and 75 decibels in the left ear at each of the specified frequencies. The puretone threshold average was 75 decibels in the right ear and 67.5 decibels in the left ear. The January 2019 VA examiner determined that the speech discrimination was not appropriate for this Veteran; therefore Table VIa was used based on the puretone threshold average alone. 38 C.F.R. § 4.85(c). Applying the foregoing results to Table VIa yields a finding of Level VI hearing loss in the right ear and a finding of Level V hearing loss in the left ear. When hearing loss is at Level VI hearing loss for the right ear and Level V hearing for the left ear, a 20 percent rating is assigned under Table VII. 

The Board acknowledges that the Veteran has stated his hearing loss impacts his ability to drive and that he cannot understand words. See January 2021 Board Hearing Trans. pg. 4. The Board does not discount the difficulties the Veteran has with his auditory acuity.  When a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, however, those effects are contemplated by the schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In this case, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech or conversation, particularly while driving. As such, the Board must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

In the absence of any additional medical evidence showing a more severe hearing disability, a disability rating in excess of 20 percent for bilateral hearing loss is not warranted.

REASONS FOR REMAND

1. Back Disability

The Board acknowledges that the Veteran filed a claim for a pinched nerve in his neck. However, the Board finds that the issue on appeal is service connection for a back condition, as it more accurately describes the disability for which the Veteran is seeking service connection, based on the Veteran's testimony. See January 2021 Board Hearing Trans. pg. 14. 

Additionally, the Veteran has not been afforded a VA examination. The VA must provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for finding that the disability may be associated with service is low. Id. A Veteran is competent to report his observable symptoms and history, including the onset and timing of symptoms, and such reports must be considered. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

Here, the Veteran's military personnel record shows that he was a parachute rigger. See March 1966 Military Personnel Record. Additionally, the Veteran testified that he hurt his back, while participating in parachute jumps during service. See January 2020 Board Hear. Trans. pp. 8-9. As the record evidence tends to show that the heart condition had its onset during or is otherwise related to service, the Board finds that the Veteran should have been afforded a VA examination. 

Accordingly, the Board finds that the issue of service connection for the Veteran's back condition must be remanded to obtain a VA examination. See, McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also, 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examiner should determine whether the Veteran's back condition had its clinical onset in service due to his in-service duties as a parachute rigger. 

In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports.  Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his back condition disability.  See, Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020).

2. Residuals of Brain-Related Blood Draining

Although the Board has denied an increased rating for the Veteran's bilateral hearing loss disability, the Board finds that the Veteran has raised a secondary service connection claim for residuals of brain-related blood draining, as secondary to his hearing loss disability. Therefore, a VA examination is necessary to determine whether the Veteran's hearing loss disability has caused and/or aggravated a potential disorder that required "brain-related blood draining". In Morgan v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that the "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." 31 Vet. App. 162, 167 (2019). In doing so, the Court held this included secondary service connection. Id; see also Long v. Wilkie, 33 Vet. App. 167 (en banc) (2020); Bailey v. Wilkie, 33 Vet. App. 188 (2021). Further, the Court held in Grimes v. McDonough that a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream, regardless of whether the claim is initially granted or denied by the RO. Grimes v. McDonough, 2021 U.S. App. LEXIS 18-1017, *8-11 (Fed. Cir. Apr. 28, 2021). Moreover, a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

Here, the Veteran contends that his hearing loss disability caused him to have surgery that required getting blood drained off his brain. See January 2020 Board Hearing Trans. p. 6. By broadly construing the Veteran's testimony, the Board finds that a secondary service connection claim has been raised. After reviewing the record, the Board finds that there is no medical evidence addressing whether the Veteran has any residuals of brain-related blood draining, and if so, whether the blood draining was caused by and/or aggravated by his bilateral hearing loss. Therefore, a VA examination is needed to determine whether the Veteran's residuals of brain-related blood draining is related to the Veteran's service-connected hearing loss disability.

In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports.  Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his residuals of brain-related blood draining disability.  See, Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020).

The matters are REMANDED for the following action:

1. Take all appropriate action to obtain all outstanding service treatment records. If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such.

2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his back condition and his residuals of brain-related blood draining disability. The Veteran's claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. For all diagnosed conditions:

(a.) Identify the Veteran's back condition and his residuals of brain-related blood draining disability.

(b.) For any diagnosed back condition, please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back condition is the result of any incident in service, had its clinical onset during service, or is etiologically related to the Veteran's active duty service in any way? Please address and provide an explanation. 

a.	In providing a response to Part (b), please take into account the Veteran's duties as a parachute rigger during service. 

(c.) For any his residuals of brain-related blood draining disability condition, please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's the diagnosed condition was caused by his bilateral hearing loss disability. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements)

(d.) Please state whether it is at least as likely as not that the Veteran's diagnosed condition was aggravated by his bilateral hearing loss disability. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b).

A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 

The examiner should provide a complete rationale for any opinion rendered. If the examiner's opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so.

 

 

S.C. Krembs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Foster, 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.