Citation Nr: 21073927 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-32 048 DATE: December 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to an increased rating higher than 20 percent for right shoulder impingement syndrome due to a clavicle osteolysis and an arthropathy is remanded. Entitlement to an increased rating higher than 10 percent for left ankle achilles tendon tear is remanded. Entitlement to service connection for cervical spine disability, claimed as secondary to service-connected to right shoulder disability is remanded. Entitlement to service connection for right ankle disability, claimed as secondary to service-connected left ankle disability is remanded. FINDING OF FACT 1. A bilateral hearing loss has for VA purposes not been present during the period of the claim or approximate thereto. CONCLUSION OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1974 to January 1976, and from November 2004 to October 2009. This case come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a VA Regional Office (RO). At his request, the Veteran was scheduled for a virtual Board hearing to be held in November 2021. However, the Veteran failed to report for the hearing, and neither furnished an explanation for his failure to report, nor requested a postponement or another hearing. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.603(d). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258, 264 (2015). In addition, 38 C.F.R. § 3.385 provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 1. Bilateral Hearing Loss At the Veteran's January 1974 enlistment examination, audiological testing showed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 - 10 LEFT 5 5 5 - 5 At the Veteran's May 1976 separation examination, audiological testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 - 0 LEFT 10 10 5 - 5 In October 2015, the Veteran underwent a VA audiological examination. The evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 20 20 LEFT 0 10 5 10 20 Speech discrimination testing using the Maryland CNC word list was 100 percent in both ears. The examiner's findings indicate the Veteran does not have hearing loss for VA purposes. The Veteran has therefore not met his burden of showing that he has a current bilateral hearing loss disability for VA purposes. The current disability element of a service connection claim may be defined broadly, Saunders, 886 F.3d at 1364-65 (a diagnosis is not required to meet the current disability requirement where pain causes functional impairment) and need not be shown at the time of the Board decision. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim; Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, none of the medical or lay evidence demonstrate that the Veteran has a disability related to bilateral hearing loss at any time during the course of the appeal or approximate thereto. Moreover, the requirements for establishing a hearing loss disability are specifically delineated in 38 C.F.R. § 3.385 and have not been met in this case. He has thus failed to establish an essential element of the service connection claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that section 1110 of the statute requires the existence of a current disability for VA compensation purposes); 38 U.S.C. § 5107 (a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim). Based on the foregoing, the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application, and the claim for service connection for bilateral hearing loss must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REMAND 1. Right Shoulder / Left Ankle Subsequent to the most recent October 2015 VA examinations, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The Veteran's previous examinations do not appear to comply with 38 C.F.R. § 4.59 as interpreted in Correia. Additionally, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. With respect to the right ankle claim, while the examiner stated that an opinion could not be provided without resort to speculation in view that the Veteran is neither in a flare-up or has been in repeated use over time situation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community contrary to Sharp. With respect to the left ankle claim, the examiner stated that an opinion could not be expressed, as it would be speculative in view that today is not a positive flare-ups episode. However, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community contrary to Sharp. Consequently, a remand is warranted for a new VA examination, to be conducted in accordance with 38 C.F.R. § 4.59 as interpreted in Correia and Sharp. 2. Cervical Spine The Veteran contends that his cervical spine disability is secondary to his service-connected left shoulder disability. The Veteran was afforded a VA examination in October 2015. The examiner opined that the Veteran's cervical spine condition is less likely as not proximately due to or the result of service-connected right shoulder disability. The examiner's rationale was the cervical spine condition diagnosed in 2015 is due to normal progression of aging process and is unrelated to right shoulder condition. The examiner, however, failed to provide a clear opinion with rationale addressing whether the Veteran's cervical spine condition was aggravated by his service-connected right shoulder disability. 38 C.F.R. § 3.310 (b); El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In light of the above, the Board finds the examiner's opinion is inadequate and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 3. Right Ankle The Veteran contends that his right ankle disability is secondary to his service-connected left ankle disability. The Veteran was afforded a VA examination in October 2015. The examiner opined that the Veteran's right ankle condition is less likely as not proximately due to or the result of the Veteran's service-connected left ankle disability. The examiner's rationale was the Veteran has normal gait pattern and no ankle instability or biomechanical gait disturbances in his left ankle causing alteration in right posterior ankle structure or change in gait pattern. The examiner, however, failed to provide a clear opinion with rationale addressing whether the Veteran's right ankle condition was aggravated by his service-connected left ankle disability. 38 C.F.R. § 3.310 (b); El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In light of the above, the Board finds the examiner's opinion is inadequate and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to include via telehealth if warranted, to determine the severity of his service-connected right shoulder and left ankle disabilities. The claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. The examination should be conducted in accordance with the current disability benefits questionnaire, to include compliance with 38 C.F.R. § 4.59, as interpreted in Correia, and with Sharp. 2. Obtain an opinion from an appropriate specialist physician as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability was either (a) caused or (b) aggravated by his service-connected right shoulder disability. Both causation and aggravation should be specifically addressed. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The claims file should be reviewed by the physician. If aggravation is found, the physician should identify the baseline level of severity prior to the onset of aggravation. The physician must provide a complete rationale for any opinion set forth. In addressing this matter, the physician should address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran. 3. Obtain an opinion from an appropriate specialist physician as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ankle disability was either (a) caused or (b) aggravated by his service-connected left ankle disability. Both causation and aggravation should be specifically addressed. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The claims file should be reviewed by the physician. If aggravation is found, the physician should identify the baseline level of severity prior to the onset of aggravation. The physician must provide a complete rationale for any opinion set forth. In addressing this matter, the physician should address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.