Citation Nr: 21075583 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-53 173 DATE: December 20, 2021 ORDER The issue of entitlement to service connection for right ear hearing loss is denied. REMANDED The issue of entitlement to service connection for sleep disturbance, including obstructive sleep apnea, is remanded. The issue of entitlement to service connection for a bilateral knee condition is remanded. FINDING OF FACT The Veteran's right ear hearing loss does not rise to the level of hearing impairment considered to be a disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force June 1971 to June 1975 and in the United States Navy from April 1977 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2014 and May 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2016 the Veteran testified at a hearing before a Decision Review Officer, and the transcript is of record. He also testified at a Board hearing before the undersigned Veterans Law Judge; that transcript is also of record. This matter was previously before the Board in July 2020 at which time the issues currently before the Board were remanded for further development. Now, the issue of entitlement to service connection for right ear hearing loss is denied. To establish service connection, a showing of competent medical, or in certain circumstances, lay evidence must confirm (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 116667 (Fed. Cir 2004). For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 this case, four different audiometric tests were conducted at the Durham, North Carolina VA Medical Center. See 5/27/2015 CAPRI, 5/27/17 CAPRI, 11/5/18 CAPRI, 7/9/2019 CAPRI. Although the testing conclusions were included in the Veteran's VA treatment records, the audiograms, including results of puretone threshold testing results at 500, 1,000, 2000, 3000, and 4000 Hertz were not. Thus, those results are not being considered as part of this decision. Nonetheless, the Veteran was afforded two compensation and pension audiometric examinations in furtherance of his claim for entitlement to service connection for right ear hearing loss in November 2013 and December 2020. Those examination results are considered. The November 2013 examination revealed pure-tone thresholds of 15, 20, 20, 15 and 20 in the right ear at the relevant frequencies and speech recognition ability of 98% in the same ear. See 1/18/2014 C&P Examination. The December 2020 examination revealed pure-tone thresholds of 15, 15, 20, 20, and 30 in the right ear at the relevant frequencies and speech recognition ability of 98 percent in the same ear. In neither the November 2013 nor the December 2020 examinations was the auditory threshold 40 decibels or greater in any of the relevant frequencies nor was it 26 decibels or greater in three of the relevant frequencies. Furthermore, in neither of the examinations was the speech recognition score less than 94 percent in the right ear. Thus, the Veteran's right ear is not considered hearing disabled for VA purposes and service connection is denied. The Board notes that while entitlement to service connection for left ear hearing loss was originally a part of the claim, the Veteran was service connected for the same during the pendency of the appeal thus fully resolving his appeal on that issue. See 10/18/2021 Rating Decision. REASONS FOR REMAND When the VA orders a medical examination, it must conduct a "thorough and contemporaneous [one]." Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). All medical examinations ordered by the VA must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided."). A medical opinion is adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Additionally, a thorough and adequate examination must consider all other relevant evidence of record, including lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). An adequate medical opinion does not contain only data and conclusions, "but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Ultimately, if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination reports); Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (inadequate medical evaluation frustrates judicial review). 1. The issue of entitlement to service connection for sleep disturbance, including obstructive sleep apnea, is remanded. A January 2021 VA examination was conducted to evaluate whether the Veteran's sleep disturbance, including obstructive sleep apnea, was related to active-duty service. However, the resultant VA opinion was inadequate for VA purposes. The examiner provided a generic statement of the anatomical cause of sleep apnea and associated symptoms characteristic of the condition but did not relate that information to the Veteran's specific clinical picture. Moreover, the examiner relied on the absence of notation of the condition in the Veteran's service treatment records to make her negative nexus determination and did not consider the Veteran's lay statements that he felt fatigue immediately after separation from service. Accordingly, remand for an addendum opinion is warranted. 2. The issue of entitlement to service connection for a bilateral knee condition is remanded. Similarly, the Veteran was afforded a January 2021 VA examination to determine the nature and etiology of his bilateral knee condition and determine whether it was related to active-duty service. That examination opinion was also inadequate for VA purposes. There, the examiner did not address the Veteran's lay statements attributing his knee pain and degenerative arthritis to the cumulative effects of standing and walking during his 20-year military career. Thus, an addendum opinion related to the Veteran's bilateral knee condition is warranted as well. The matter is REMANDED for the following actions: 1. Return the claims file to the VA examiner who conducted the January 2, 2021 C&P Examination, if available. If that examiner is not available, forward the claims file to another appropriate examiner to address the following: (a.) Please identify any sleep disorder by diagnosis, to include sleep apnea. (b.) For any disorder identified, please state whether it is at least as likely as not (50 percent probability or more) that the disorder had its onset in or is otherwise related to service. Please accept as valid the Veteran's testimony that he experienced excessive daytime sleepiness and fatigue immediately after his separation from active-duty service, and state whether a nexus between the Veteran's disorder and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided as valid, the Board is not assessing the credibility of his statements at this time). A complete rationale for the examiner's opinions should be provided, citing to specific evidence of record, as necessary. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 2. Return the claims file to the VA examiner who conducted the January 2, 2021 C&P Examination, if available. If that examiner is not available, forward the claims file to another appropriate examiner to address the following: (a.) Please identify any bilateral knee condition by diagnosis, to include arthritis. (b.) For any disorder identified, please state whether it is at least as likely as not (50 percent probability or more) that the disorder had its onset in or is otherwise related to service. Please directly address the Veteran's contention that his bilateral knee condition is a result of the cumulative effects of his 20-year military career which included long hours of standing and walking the steel decks aboard Navy vessels and as a United States Air Force security policeman. (The Board reminds the Veteran that in asking the examiner to accept the history he provided as valid, the Board is not assessing the credibility of his statements at this time). A complete rationale for the examiner's opinions should be provided, citing to specific evidence of record, as necessary. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.