Citation Nr: 21009099 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-03 252 DATE: February 19, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to patellofemoral syndrome of the left knee, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1995 to August 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2020, the Board remanded the Veteran’s claims for additional development and they now return for further appellate review. 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss related to noise exposure during military service and experienced a decrease in his hearing acuity during service. In this regard, as noted in the January 2020 remand, the record reflects a current diagnosis of bilateral hearing loss as defined by VA regulations as demonstrated at a May 2015 VA examination and a January 2017 private audiogram. 38 C.F.R. § 3.385. Additionally, in light of the Veteran’s military occupational specialty of light armored vehicle mechanic, his in-service noise exposure is acknowledged. Furthermore, at the time of his June 1999 separation examination, the Veteran reported hearing loss and indicated that he could not hear well at times. Thus, the remaining inquiry is whether the Veteran's bilateral hearing loss is related to his military service, to include his noise exposure therein. In this regard, the January 2020 remand observed that, in May 2015, a VA examiner reviewed the record, interviewed the Veteran, conducted audiometric testing, and opined that it was less likely than not that the Veteran's bilateral hearing loss is related to his in-service noise exposure. In support of such opinion, he acknowledged the Veteran’s exposure to hazardous noise levels in service as well as his subjective report of hearing loss while in service. However, he found that electronic hearing testing conducted at enlistment, during service, and at discharge did not demonstrate a significant threshold shift beyond normal variability during service and, thus, he did not have an in-service hearing or noise injury. The examiner further noted that the Institute of Medicine (IOM) (2006) indicated in a landmark study of noise injury while in military service that delayed onset hearing loss due to previous noise exposure is unlikely to occur. Thus, he found that if the evidence shows there has been no significant threshold shift beyond normal variability while in service (i.e., no hearing injury while in service), any hearing loss occurring following service is less likely as not caused by or a result of noise exposure while in service. Therefore, the examiner concluded that, based on in-service electronic hearing testing, the Veteran did not have hearing loss/hearing injury in service, and delayed onset hearing loss due to noise exposure is unlikely to occur. Thus, he opined that the Veteran's hearing loss is less likely as not caused by or a result of his in-service noise exposure. However, as discussed in the January 2020 remand, the Veteran subsequently submitted a statement from his fellow service member, C.M., in November 2019, in which C.M. indicated that he recalled the Veteran having difficulty hearing general conversations and continually asked what was being said. Additionally, the January 2017 audiogram reflects a notation that the configuration of the Veteran's hearing loss is consistent with concussive noise and loud noise exposure. Furthermore, with regard to the examiner's reliance on the IOM (2006) report, the United States Court of Appeals for Veterans Claims (Court) has found that, while the report states that "based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely" that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report's findings pertinent to the matter. The Court provided that, while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." (IOM report at 203-04.) The Court has directed attention to the fact that the IOM report's language may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss such that a VA examiner's citation of the report should contemplate all of the pertinent aspects of its findings. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). Thus, the Board remanded the claim in order to obtain an addendum opinion addressing whether the Veteran's bilateral hearing loss is related to his military service, to include his in-service noise exposure. The remand instructed the examiner to consider C.M.'s statement, the Veteran's reports of in-service hearing loss and a continuity of symptomatology thereafter, the January 2017 audiogram, and the portion of the IOM report that may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss. While the May 2015 VA examiner provided such opinion in January 2020, he essentially reiterated his prior unfavorable opinion with reliance upon the IOM (2006) report for the proposition that it is unlikely that delayed hearing loss occurs and, in the absence of objective evidence demonstrating a hearing injury in service, it was less likely than not that the Veteran’s bilateral hearing loss is related to his military service. In this regard, despite the Board’s advisement, the examiner did not appear to consider the fact that the IOM (2006) may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss. Further, while he acknowledged that the Veteran was exposed to hazardous noise levels while in service and indicated that the subjective reports of hearing loss in service were taken into consideration, which is verbatim what he stated in the May 2015 opinion, he did not consider the Veteran’s report of difficulty hearing at his separation examination, or the statements from C.M. describing the Veteran’s apparent difficulty hearing while still in military service. He likewise did not consider the January 2017 audiogram that reflects a notation that the configuration of the Veteran’s hearing loss is consistent with concussive noise and loud noise exposure. Accordingly, another remand is necessary in order to ensure compliance with the Board’s prior remand directives and obtain an addendum opinion addressing the etiology of the Veteran’s bilateral hearing loss. 2. Entitlement to service connection for a right knee disorder, to include as secondary to patellofemoral syndrome of the left knee. The Veteran contends that he has a right knee disorder directly related to his military service, to include as a result of the repetitive impact on his knees due to physical training and the nature of his duties as a mechanic that required squatting, lifting, jumping, and kneeling. Alternatively, the Veteran alleges that his right knee disorder was caused or aggravated by his service-connected left knee disability. In this regard, he testified that he placed more weight on his right knee to compensate for the pain, instability, and limited range of motion resulting from his left knee disability and ultimately altered his gait. As noted in the January 2020 remand, the Veteran’s service treatment records reflect that, at the time of his June 1999 separation examination, he reported patellofemoral syndrome in his right knee and indicated that he was currently experiencing pain in the right knee. However, upon examination in June 2015, no findings referable to the right knee were rendered. Nonetheless, in light of the Veteran’s reports of ongoing right knee symptomatology, the Board remanded the claim in order to afford him a new VA examination so as to determine the nature and etiology of his claimed right knee disorder. Thereafter, upon examination in January 2020, a past diagnosis of patellofemoral pain syndrome of the right knee in 2005 was noted. Further, while physical examination and diagnostic testing of the Veteran’s right knee was normal, he reported ongoing right knee symptomatology, to include pain, popping, grinding, weakness, and instability, which the examiner found resulted in a loss of zero to 1 week a year from his job due to functional impairment of limitation of prolonged standing, walking, running, sitting, kneeling, and climbing stairs. Thus, based on such determination, the Board finds that the Veteran has a current right knee disability as contemplated by VA regulations. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). Thereafter, as relevant, the examiner opined that that the Veteran’s reported right knee disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, she indicated that the Veteran’s right knee disorder was acute during service, documented once without medical examination and not considered disqualifying in 1999, and there was no evidence of chronicity of care over time for an ongoing right knee disorder. However, despite being requested to do so, the examiner did not address whether the Veteran’s right knee disability is related to the repetitive impact on his knees due to physical training and/or the nature of his duties as a mechanic that required squatting, lifting, jumping, and kneeling. Furthermore, chronicity of care is not required to establish service connection. In this regard, the sole basis for rejecting the Veteran’s lay statements cannot be the fact that there are no corroborating records. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (“the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”). Thus, the Board finds that a remand is necessary to obtain another addendum opinion that addresses such concerns. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this remand, to a VA examiner other than the examiner who offered opinions addressing the etiology of the Veteran’s bilateral hearing loss in May 2015 and January 2020, if possible. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s diagnosed bilateral hearing loss is related to his acknowledged in-service noise exposure? In offering such opinion, the examiner should consider the fact that the IOM (2006) report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure,” which may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss. (IOM report at 203-04.) He or she should also address the Veteran’s and C.M.’s reports that he experienced decreased hearing acuity in service that has continued to the present time as well as the January 2017 audiogram that reflects a notation that the configuration of the Veteran’s hearing loss is consistent with concussive noise and loud noise exposure. (B) State whether the Veteran’s bilateral hearing loss manifested within one year of his separation from service in August 1999 i.e., by August 2000. If so, please describe the manifestations. A rationale for any opinion offered should be provided. 2. Forward the record, to include a copy of this remand, to the VA examiner who conducted the January 2020 VA examination of the Veteran’s right knee or an appropriate substitute if she is unavailable. The examiner is advised that he or she should accept that the Veteran’s has a right knee disability for the purpose of offering the below opinion. Following a review of the record, the examiner should offer an opinion as to whether it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right knee disability (defined as symptoms resulting in functional impairment of earning capacity) had its onset in, or is otherwise related to, his military service, to include as a result of the repetitive impact on his knees due to physical training and/or the nature of his duties as a mechanic that required squatting, lifting, jumping, and kneeling, or due to his complaints of pain and reported patellofemoral syndrome as reflected at his June 1999 separation examination? The examiner is advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.