Citation Nr: 21076083 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-53 711 DATE: December 22, 2021 ORDER Entitlement to an effective date prior to May 26, 2017, for the grant of service connection for right ankle degenerative arthritis is dismissed. Entitlement to an effective date prior to May 26, 2017, for the grant of service connection for tinnitus is dismissed. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for right ankle degenerative arthritis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. On July 23, 2021, prior to the promulgation of a decision in the appeal, the Veteran expressed his desire in writing, by way of his representative, to withdraw from appellate review his claim for an effective date prior to May 26, 2017, for the grant of service connection for right ankle degenerative arthritis. 2. On July 23, 2021, prior to the promulgation of a decision in the appeal, the Veteran expressed his desire in writing, by way of his representative, to withdraw from appellate review his claim for an effective date prior to May 26, 2017, for the grant of service connection for tinnitus. 3. The Veteran's bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service; hearing loss is not shown to have manifested to a compensable degree within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim for an effective date prior to May 26, 2017, for the grant of service connection for right ankle degenerative arthritis have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2021). 2. The criteria for dismissal of the claim for an effective date prior to May 26, 2017, for the grant of service connection for tinnitus have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2021). 3. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1974 to July 1976. These matters come before the Board of Veteran's Appeals (Board) on appeal from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. At the July 2021 Board hearing, the Veteran testified that he was unable to work due to service connected disability. Therefore, the issue of entitlement to a TDIU has been raised as part of the right ankle rating claim, and is properly on appeal before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Previously, the Veteran testified at an October 2017 Board hearing before a different Veterans Law Judge regarding his appeal of entitlement to service connection for posttraumatic stress disorder (PTSD). In June 2018, the Board remanded the PTSD claim for further development. Because that hearing was before a different Veterans Law Judge, the PTSD appeal will be addressed in a separate Board decision. Dismissal 1. Entitlement to an effective date prior to May 26, 2017, for the grant of service connection for right ankle degenerative arthritis 2. Entitlement to an effective date prior to May 26, 2017, for the grant of service connection for tinnitus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2021). Withdrawal may be made by an appellant or by his or her authorized representative. Id. In July 2021, the Veteran, by way of his representative, expressed in writing his desire to withdraw from appellate review his claims for an earlier effective date for service connection for his right ankle and tinnitus disabilities. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals, and the claims for effective dates prior to May 26, 2017, for the awards of service connection for a right ankle disability and tinnitus are dismissed. Service Connection 1. Entitlement to service connection for bilateral hearing loss The Veteran contends he has bilateral hearing loss due to noise exposure during his active service. He testified at the Board hearing that he believes his hearing loss is due to firing his weapon in service. He also testified that on one occasion, he "busted my eardrum" firing his weapon, and that the ear continues to bleed intermittently. The Veteran's service personnel records show he served as a switchboard operator, which VA has acknowledged may involve a moderate risk of exposure to hazardous noise. See, e.g., DD Form 214; Personnel, received March 2011 at p.4 of 110. His service treatment records show no complaint of hearing loss or a perforated ear drum. His February 1974 enlistment examination report shows audiometric testing revealed pure tone thresholds as follows: Hertz (decibels) 500 1000 2000 4000 RIGHT 20 20 0 10 LEFT 10 10 10 30 See Service treatment records at p.7 of 69. His June 1976 separation examination report shows examination of his ears was normal, and examination of the ear drums was negative for perforation. See Service treatment records at p.32 of 69. The separation examination report shows audiometric testing revealed pure tone thresholds as follows: Hertz (decibels) 500 1000 2000 4000 RIGHT 10 10 5 5 LEFT 15 10 10 10 His June 1976 separation report of medical history shows he checked the box denying that he denied any hearing loss. See id. at p.30. There is no record of complaint of hearing loss or hearing loss manifesting to a compensable degree within one year of the Veteran's retirement from service. Therefore, service connection for hearing loss cannot be presumed. See 38 C.F.R. § 3.309(a) (2021). The first medical record of complaint of hearing loss is a July 2017 VA examination report, which shows audiometric testing revealed pure tone thresholds as follows: Hertz (decibels) 500 1000 2000 3000 4000 6000 RIGHT 20 25 30 45 45 40 LEFT 35 35 45 60 65 70 Speech recognition scores using Maryland CNC word lists were 94 percent for the right ear and 90 percent for the left ear. Because the Veteran's pure tone thresholds were 40 decibels or more in both ears at any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, the Veteran is shown to have bilateral hearing loss for VA regulatory purposes. See 38 C.F.R. § 3.385 (2021). The July 2017 VA examiner noted the Veteran's reported history of exposure to machine gun fire and grenades in service, and a post-service history of occupational noise exposure involving heavy machinery and in a factory without hearing protection. The Veteran denied having any previous audiological examination (since service). The examiner diagnosed bilateral sensorineural hearing loss and opined that it is not at least as likely as not caused by his active service. For the right ear, the examiner reasoned that there were no permanent positive threshold shifts (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 hertz for either ear when the enlistment and separation audiograms were compared, that he had normal hearing at the time of separation from service, the right ear hearing loss was mild, and cited to post-service occupational noise exposure. For the left ear, the examiner reasoned that the separation examination report showed normal hearing, there were no positive threshold shifts from the time of enlistment to separation, hearing was normal at the time of separation, the mild hearing loss shown at 4000 hertz at the time of enlistment had resolved by the time of separation, and cited to his post-service occupational noise exposure. The Veteran submitted a January 2021 positive medical opinion, but the Board finds the opinion to be of low probative value because it relies on an erroneous history of the Veteran essentially being moved to an artillery unit, whereas the Veteran's service personnel records clearly show he was a telephone switchboard operator and assigned to a signal company or battalion for the entirety of his service. Moreover, this opinion did not address the Veteran's post-service history of occupational noise exposure, nor the fact that there were no significant threshold shifts during service and that the Veteran's hearing was normal at the time of discharge. Having considered all the evidence of record, the Board finds a preponderance of the evidence is against finding that the Veteran's bilateral hearing loss is related to his active service. The Board finds that the July 2017 VA examiner's opinion is the most probative medical opinion, which opinion is supported by a detailed rationale. No hearing loss for VA compensation purposes was shown at the time of separation from service, and none was shown until 2017. The Veteran's June 1976 separation report of medical history shows he denied experiencing any hearing loss or ear trouble. To the extent the Veteran himself, as a lay person, opines that his hearing loss was caused by his active service, the Board finds that the Veteran's opinion carries no probative weight because it is not supported by any rationale. Although he is certainly competent to report experiencing difficulty hearing, the Board finds that he is not shown to be competent to provide an etiological opinion as to whether his sensorineural hearing loss is related to in-service noise exposure over 40 years ago, which requires medical expertise. See King v. Shinseki, 700 F.3d 1339 (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges that the Veteran is presently service connected for tinnitus. In that regard, the Board is cognizant that the Veteran, as a lay person, is competent to report whether ringing in his ears began during his active service. See Charles v. Principi, 16 Vet. App. 370 (2002). As noted above, however, the Veteran is not shown to have the medical expertise to etiologically link his post-service sensorineural hearing loss to his active service. Also, the Veteran himself specifically denied any hearing loss on his separation report of medical history, which contemporaneous report by him is particularly credible. The Board acknowledges the assertion by the Veteran's representative in February 2021 that the Veteran suffered from hearing loss in service. However, as noted above, the Veteran in fact denied experiencing hearing loss on his separation report of medical history, which contemporaneous report by the Veteran himself the Board finds to be more credible. Therefore, the Board concludes that service connection for bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for right ankle degenerative arthritis 2. Entitlement to a TDIU The Veteran's right ankle disability is currently assigned a 10 percent rating, effective May 26, 2017. The Veteran seeks a higher initial rating. See NOD, October 2017. The Veteran also claims entitlement to a TDIU. See Form 21-8940, August 2021; Hearing transcript, July 2021. The Veteran was last afforded a VA examination in September 2021. The examiner noted painful motion, but did not describe whether the ranges of motion provided were in weight bearing or nonweight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016) (range of motion testing should be performed "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing"). The report does not indicate that the Veteran reported flare-ups. Therefore, the claim will be remanded to ask the VA examiner who prepared the September 2021 VA examination report to provide an addendum to clarify whether the ranges of motion in his report were weight bearing, and if so, whether weight bearing ranges of motion would be expected to be more limited than nonweight bearing. If either question is answered in the negative, a new VA examination should be performed. The Board defers decision on the TDIU claim as intertwined with the right ankle rating claim being remanded herein. 3. Entitlement to service connection for a back disability 4. Entitlement to service connection for a right knee disability The Veteran contends he has a back disability and a right knee disability due to his active service. At the Board hearing, he testified that he injured both his back and right knee in the same incident when he slipped out of a truck while stationed at Fort Gordon. He testified he was taken back to base and went to bed, and self-treated with over the counter medications until he was seen at a VA medical center post-service in 1995. There is no record of treatment in service. The Veteran testified he sought treatment at the VA medical center in 1995, but the earliest VA treatment records in the claims file are dated in 2011. Therefore, before a decision can be made on the claims, the Board finds the claims should be remanded so that all of the Veteran's VA treatment records dated from 1995 to 2010 may be associated with the claims file. The matters are REMANDED for the following action: 1. Ask the VA examiner who provided the September 2021 VA examination report (right ankle) to provide an addendum opinion clarifying whether: a) The ranges of motion provided were in weight bearing; and b) If so, whether these ranges of motion would be expected to be productive of greater limitation of motion than nonweight bearing. If the answer to either of these two questions is negative, afford the Veteran a new VA examination to address the current severity of his service-connected right ankle disability. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must comply with the requirements of 38 C.F.R. §4.59 involving measurements of passive and active range of motion -in both weight bearing and non-weight bearing. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. The examiner should be asked to note whether there is any weakened movement, excess fatigability, incoordination, or pain on use. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain). The examiner should also address the effect of the Veteran's right ankle disability on his occupational functioning. 2. Associate with the claims file all of the Veteran's VA treatment records dated from 1995 to 2010. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.