Citation Nr: 21074545 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-51 917 DATE: December 15, 2021 REMANDED Entitlement to service connection for a right ankle disability, to include as secondary to a left ankle disability is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a left ankle disability is remanded. Entitlement to service connection for a right knee disability, to include as secondary to a left ankle disability is remanded. Entitlement to service connection for a back disability, to include as secondary to a left ankle disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1977 to August 1981. This case comes on appeal of a June 2013 rating decision. This case was previously before the Board in December 2018. At that time, the Board, in pertinent part, remanded the issues below for further development. Although the Board will discuss each of these issues in more detail below, as a general matter, whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 1. Entitlement to service connection for a right ankle disability, to include as secondary to a left ankle disability is remanded. The Veteran has advanced two theories of entitlement regarding his claimed right ankle disability. First, the Veteran contends that a right ankle disability is causally related to an in-service right ankle injury. Second, the Veteran contends that a right ankle disability was caused or aggravated by his service-connected left ankle disability. Regarding the first theory of entitlement, the Veteran has noted that he suffered a right ankle injury in service in March 1981, as documented in his service treatment records. The Veteran underwent a VA ankle conditions examination in May 2013. At that time, the examiner reported that there was a normal physical examination of the right ankle, with only subjective complaints. Therefore, the examiner did not address the etiology of a right ankle disability. The Veteran then underwent a new VA examination in July 2016. At that time, however, the examiner reported inversion and eversion of the right ankle that the examiner attributed to lower extremity swelling. The examiner also stated that the Veteran was not claiming any disability for the right ankle at that time and did not further address the etiology of any right ankle disability. This assertion was incorrect, as the Veteran continued to pursue his appeal for service connection for a right ankle disability at this time. Thus, the Board remanded the claim for a new examination. The Veteran then underwent a new VA examination in July 2019. This examination was conducted by the same examiner as the July 2016 examination. At that time, the examiner diagnosed lateral collateral ligament sprains of both the left and right ankle. At the time of examination, the examiner found that the dorsiflexion and plantar flexion were outside of normal range. In the examination report, the examiner responded directly to the Board's remand findings, insisting that if he reported that the Veteran was not claiming any disability for the right ankle at the time of the July 2016 examination, this meant that the Veteran had denied any complaints of right ankle symptoms. The examiner then reiterated the finding that there was no current right ankle disability and that the examination was negative, x-rays were negative, and symptoms were negligible and not in any way limiting now or in the past. The examiner then opined that a right ankle was not secondary to the left ankle disability in that there was no disability, nor limitation, nor evidence of a lasting injury to the Veteran's right ankle sprain in 1981. Unfortunately, this examination is once again inadequate. First, the Board notes that, even in the absence of a diagnosed condition, pain alone may be considered a disability for VA purposes when it results in functional loss. Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). Here, the Veteran has continued to describe pain in his right ankle throughout his appeal. Moreover, there were objective findings of limitation of motion on the most recent right ankle examination. The examiner's declaration that the Veteran did not have a current right ankle disability appears to be inconsistent with these findings. On remand, the Veteran should be afforded a new right ankle examination with an examiner other than the examiner who performed the July 2016 and July 2019 examinations. The examiner should address whether the Veteran has a right ankle disabilityto include pain alone, if that pain manifests in functional loss. The examiner should then address whether it is at least as likely as not that any right ankle disability was caused by or incurred in service, or whether the disability was caused or aggravated by the Veteran's left ankle disability. 2. Entitlement to service connection for a left knee disability, to include as secondary to a left ankle disability is remanded. 3. Entitlement to service connection for a right knee disability, to include as secondary to a left ankle disability is remanded. The Veteran contends that he has a bilateral knee condition secondary to his service-connected left ankle disability. The Veteran underwent a VA knee examination in July 2016. There, the examiner reported an impression of bilateral medial compartment osteoarthritis of the knees. The examiner stated that the Veteran's history of a bilateral knee injury in a motor vehicle accident in 2003, followed by arthroscopic surgery and the appearance of medial compartment joint space narrowing in 2003 and progression of the medial compartment osteoarthritis would indicate that it is more likely than not that the accident and surgery led to the current condition. The examiner opined that there is no indication that the Veteran's service-connected left ankle is in any way connected to the development of osteoarthritis in the face of injury and surgery. The examiner then noted that the Veteran's left ankle did not prevent him from working, and that the Veteran's work as an electrician more likely than not contributed to his medial compartment knee osteoarthritis. The Veteran then underwent a new examination with the same examiner in July 2019. There, the examiner once again opined that it was less likely than not that the Veteran's bilateral knee disability was causally related either to service or to the left ankle disability. By way of rationale, the examiner stated that his rationale was unchanged from the July 2016 examination and that the knee disability was more likely due to the 2003 motor vehicle accident and surgery. The examiner added that the Veteran reported that he would have knee pain during service if his left ankle rolled when jumping out of trucks. The examiner noted that the Veteran stated that he was not rendered unable to perform his duties because of his knees. The examiner also stated that the Veteran did not report any limping in the military from the left ankle. Thus, the examiner reported, there was no indication of an altered gait due to the left ankle disability. As the Veteran's representative noted in an October 2021, the examiner's opinion appears to misconstrue some aspects of service connection and dismisses the Veteran's assertions without proper explanation. First, regarding a direct relationship between service and the current knee disabilities, the examiner appears to have determined that as long as the Veteran's knees did not prevent him from performing his military duties, this indicates that the current disabilities are not related to service. To the extent that this fact is relevant, the examiner did not adequately explain why that is the case. The Board is not at liberty to fill in such gaps with its own assumptions of medical significance. Second, in addressing secondary service connection, i.e., whether the Veteran's bilateral knee disabilities were caused or aggravated by the left ankle disability, the examiner appears to have conflated this with the standard for direct service connection by stating that there was no evidence that the Veteran recalled limping during service. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected as well. 38 C.F.R. § 3.310. Thus, the relevant question is whether the Veteran's right or left knee disability was caused by the left ankle disability, or was aggravated beyond its natural progress by the left ankle disability. This is not limited to causation or aggravation in service, but at any time. Accordingly, the July 2019 examination did not adequately address the open medical questions, nor was the examiner's conclusion supported by sufficient rationale. On remand, the Veteran should be afforded a new knee examination with an examiner other than the examiner who performed the July 2016 and July 2019 examinations. The examiner should address whether the Veteran's bilateral knee disabilities were caused by or incurred in service, or whether the bilateral knee disabilities were caused or aggravated beyond their natural progress by the Veteran's service-connected left ankle disability. 4. Entitlement to service connection for a back disability, to include as secondary to a left ankle disability is remanded. The Veteran underwent a VA back examination in July 2019. There, the examiner opined that it was less likely than not that the Veteran's diagnosed degenerative disc disease was causally related to service, or to the Veteran's left ankle disability. By way of rationale, the examiner states that the back disability did not have its onset in service, as the Veteran's service treatment records were silent for a back injury. The examiner opined that the Veteran's back pain was related to work activities in the Veteran's post-service employment. The examiner then stated that there was no history or reason to believe that the Veteran's service-connected left ankle disability "had anything to do with lumbar pain occurring while [the] Veteran was working as [an] electrician after service." In providing this opinion, the examiner failed to support his conclusions with medical rationale explaining what evidence supported those conclusions and why. Moreover, the examiner did not specifically address the questions of both causation and aggravation of the back disability by the Veteran's service-connected left ankle disability. On remand, the Veteran should be afforded a new back examination with an examiner other than the examiner who performed the July 2019 examinations. The examiner should address whether the Veteran's back disability was caused by or incurred in service, or whether the back disability was caused or aggravated beyond its natural progress by the Veteran's service-connected left ankle disability. 5. Entitlement to service connection for bilateral hearing loss is remanded. 6. Entitlement to service connection for tinnitus is remanded. The Veteran has current disabilities of bilateral hearing loss and tinnitus and contends that these conditions were caused by documented in-service exposure to hazardous noise. The Veteran first underwent a VA examination for hearing loss and tinnitus in May 2013. At that time, an audiological evaluation revealed a bilateral hearing loss disability for VA purposes. The examiner stated that the Veteran did not report recurrent tinnitus. The examiner reported that they could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation because the Veteran's service treatment records were incomplete. The Veteran then underwent a new VA examination in July 2016. At that time, the examiner reported that the Veteran's test results were inconsistent, and that there was poor interest reliability. Therefore, the test results were considered invalid and unreliable. In its December 2018 remand, the Board observed that, since, those examinations, the Veteran's military separation examination had been associated with the claims file. Because this information was deemed necessary to provide an adequate etiological opinion, the Board remanded the claim to afford the Veteran a new examination. The Veteran then underwent a new examination in January 2020. There, the audiological findings showed that the Veteran had a left ear hearing loss disability for VA purposesthough the severity of this disability had improved since the May 2013 examinationand no longer had a right ear hearing loss disability for VA purposes. Because the Veteran's right ear hearing loss did not represent a VA disability for VA purposes, the examiner dismissed the possibility that a right ear hearing loss was caused by or incurred in service. Regarding the Veteran's left ear hearing disability, the examiner stated that the decibel thresholds in the Veteran's left ear were mild and "just barely meet the criteria at 4000 Hz." Because of this, the examiner opined, it was unlikely that the Veteran's hearing threshold would not have been better at the time of the Veteran's separation from service, so he would not have qualified for a VA disability at that time. In February 2020, the agency of original jurisdiction (AOJ) requested an addendum opinion from the examiner, noting that the examiner had not addressed medical treatises the Veteran submitted regarding the possibility of delayed-onset hearing loss. In response, the examiner only stated that this research was conducted on mice and did not have a human correlate at this point in time. The examiner did not explain why this was a significant factor in dismissing this research. The examiner then reiterated that the Veteran did not have recorded hearing loss that would have qualified for disability 38 years post-military exposure, therefore this meant that he did not have recorded hearing loss when leaving military service. First, the Board notes that there is no speculation regarding the Veteran's hearing thresholds at the time of separation from service. The Veteran's separation examination is available in the claims file. Based on the January 2020 examiner's comments, it is unclear whether the examiner reviewed these records. Second, the examiner appears to have ignored the May 2013 VA examination which documented hearing loss across all tested frequencies in the right ear, and hearing loss in four out of the five tested frequencies in the left ear. This is significant, as it demonstrates that the Veteran does have a right ear hearing loss disability for VA purposes during the period on appeal. This means that the examiner's rationale regarding the Veteran's right ear hearing loss is incomplete. Moreover, the May 2013 VA examination also shows that the Veteran had a more significant hearing loss disability, fewer than 38 years after service. Thus, this fact calls into question the examiner's reliance on a less severe hearing loss disability in 2020. Because of this, on remand, a new medical opinion is necessary. A reviewing examiner should evaluate the Veteran's entire claims file, to include his full service treatment records and history of post-service hearing acuity findings. The examiner should then address the etiology of the Veteran's documented bilateral hearing loss disability during the period on appeal, to include a discussion of the medical treatise articles submitted by the Veteran that is supported by adequate medical rationale. At the January 2020 examination, the Veteran reported that tinnitus had an onset in the late 1980s, several years after service. The examiner opined that it was less likely than not that tinnitus was caused by service as there was no acoustic damage in service. The examiner did not provide medical rationale to support this conclusion, thus the opinion is not adequate and this issue must be remanded for a new opinion as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the right ankle with an examiner other than the examiner who performed the July 2016 and July 2019 examinations. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the right ankle. The examiner should note that pain alone, even in the absence of a diagnosed condition, may be considered a disability for VA purposes when it results in functional loss. Then, with respect to each such disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by a service-connected disability, to include the Veteran's service-connected left ankle disability. The examiner is reminded that, for VA purposes, aggravation refers to any increase in severity of a disability beyond its natural progress. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 2. Schedule the Veteran for an examination of the bilateral knees with an examiner other than the examiner who performed the July 2016 and July 2019 examinations. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the bilateral knees. Then, with respect to each such disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by a service-connected disability, to include the Veteran's service-connected left ankle disability. The examiner is reminded that, for VA purposes, aggravation refers to any increase in severity of a disability beyond its natural progress. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 3. Schedule the Veteran for a back conditions examination with an examiner other than the examiner who performed the July 2019 examination. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the back. Then, with respect to each such disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by a service-connected disability, to include the Veteran's service-connected left ankle disability. The examiner is reminded that, for VA purposes, aggravation refers to any increase in severity of a disability beyond its natural progress. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 4. Obtain a medical opinion from an appropriate examiner regarding the Veteran's bilateral hearing loss and tinnitus. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran's documented history and assertions. The examiner should note that the Veteran underwent a May 2013 audiological evaluation that documented a bilateral hearing loss disability for VA purposes; therefore, the Veteran is considered to have a hearing loss disability during the period on appeal. With respect to this disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should also render an opinion as to whether it is at least as likely as not that the Veteran's documented tinnitus disability had onset in, or is otherwise related to service. In doing so, the examiner should specifically address the medical treatise information the Veteran submitted regarding delayed-onset hearing loss. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. (Continued on Next Page) 5. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.