Citation Nr: 21015203 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-43 916 DATE: March 16, 2021 ORDER Entitlement to service connection for hypertension, secondary to service-connected adjustment disorder with anxiety, on an aggravation basis, is granted. Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for right foot disability is remanded. Entitlement to service connection for left foot disability is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee, status post arthroscopy and meniscectomy, is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The record supports that the Veteran’s hypertension is aggravated by his service-connected adjustment disorder with anxiety. 2. The Veteran’s left ear hearing loss did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, as secondary to service-connected adjustment disorder with anxiety, on an aggravation basis, have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 until September 1986. These matters initially came to the Board of Veterans Appeals (Board) on appeal from an October 2014 rating decision. Previously, these claims were remanded by the Board in November 2018 for further development. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, obtain all outstanding VA and private medical records and to obtain a medical opinion as to whether the Veteran’s current left ear hearing loss is related to service. Pursuant to the Board’s remand, all outstanding treatment records were obtained and associated with the claims file. Also, a medical opinion was most recently obtained in September 2020 as to whether the Veteran’s left ear hearing loss is related to service. As explained below, the Board finds this opinion to be adequate and of substantial probative value. Therefore, the AOJ substantially complied with the Board’s pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Lastly, the Board points out that the Veteran had also perfected an appeal with regard to the issues of entitlement to service connection for right knee disability and hemorrhoids, and the Board remanded these issues in November 2018 for further development. A Decision Review Officer (DRO) awarded service connection for hemorrhoids and right knee status post meniscectomy and osteoarthritis in a September 2020 decision, and thereby resolved the appeal as to this issue. Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted 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). Service connection requires competent evidence showing (1) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. Aggravation of a non service-connected disability pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the disability. Rather, aggravation in this context is any incremental increase in disability attributable to service-connected disability (i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence). Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) 1. Entitlement to service connection for hypertension The Veteran contends that he is entitled to service connection for hypertension as secondary to his service-connected psychiatric disability. Resolving all reasonable doubt in the Veteran’ favor, the Board grants the claim. The Veteran is currently diagnosed with hypertension and is service-connected for adjustment disorder with anxiety. A September 2019 VA examiner opined, among other things, that it was at least as likely as not that the Veteran’s hypertension was aggravated beyond its normal progression by his service-connected psychiatric disability. The VA examiner reasoned that “episodes of anxiety can cause dramatic, temporary spikes in blood pressure.” Based on the above, the Board finds that entitlement to service connection for hypertension is warranted. In so finding, the Board assigns probative weight to the September 2019 VA opinion. The probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The September 2019 VA examiner’s reasoning that “episodes of anxiety can cause dramatic, temporary spikes in blood pressure” is persuasive, especially in light of the precedential opinion in Ward, 31 Vet. App. at 233, which held that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, aggravation is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence.  In sum, the preponderance of the evidence reflects that the Veteran has current hypertension and that this disability is aggravated by his service-connected adjustment disorder with anxiety. There is no medical opinion that is contrary to this conclusion. In light of the probative opinion described above, the Board finds that the criteria for service connection for the currently diagnosed hypertension, secondary to service-connected adjustment disorder with anxiety on an aggravation basis, have been met. Entitlement to service connection for this disability is, therefore, warranted. As there is medical evidence of the baseline level of the Veteran’s hypertension in the treatment records previously of record, this award of service connection is consistent with 38 C.F.R. § 3.303 (b). Moreover, there is no adequate or probative evidence indicating that secondary service connection is warranted on a causation basis or that the Veteran’s claimed hypertension is directly related to service. For these reasons, entitlement to service connection for hypertension is warranted. 2. Entitlement to service connection for left ear hearing loss For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran’s in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d). The Veteran claims that his left ear hearing loss is a result of his military service. The Board has reviewed all the relevant evidence of record and finds that the preponderance of the evidence weighs against the Veteran’s claim. The Veteran’s post-service treatment records, to include his October 2014, September 2019, and August 2020 VA examinations, confirm that he has left ear hearing loss as defined by VA. The Board also notes that in-service noise exposure has already been conceded given the Veteran’s MOS as a cryptologic technician, as well as his credible reports of harmful noise exposure. January 2014 CAPRI records show that the Veteran has been complaining about decreased hearing acuity for the last 20 years (since about 1994). The Veteran participated in an October 2014 VA examination. However, the November 2018 Board decision found that it was inadequate as it violated the Hensley rule that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability merely because a Veteran’s hearing was found to be within normal limits on audiometric testing at his or her separation from service. At September 2019 and August 2020 VA examinations, the VA examiners similarly opined that the Veteran’s left ear hearing loss was not related to service as the Veteran’s exit examination indicated normal hearing bilaterally. As these examinations violate the Hensley rule restated above, they too are inadequate. In a September 2020 clarification opinion, the VA examiner again noted that the Veteran’s exit examination indicated normal hearing bilaterally. As such, the VA examiner opined that the Veteran’s left ear hearing loss had its onset after service. The VA examiner also cited to Kujawa’s studies which show that hearing returned to normal after exposure and there was no evidence of delayed onset hearing loss that could be causally linked to noise exposure. In sum, while the VA examiner was unable to state what caused the Veteran’s hearing loss, she concluded that the onset of it was after his military service. After reviewing all the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for left ear hearing loss. Initially, the Board finds that presumptive service connection is not warranted as there is no evidence to show that the Veteran was diagnosed or had onset of left ear hearing loss either during service or within the first year after separation from service. The Board finds it significant that the January 2014 CAPRI records indicate that the Veteran has been complaining about hearing loss, at the earliest, for the last 20 years. Even taking this date as the earliest evidence of decreased hearing, the Veteran has only been complaining about it since about 1994, about 8 years after separation from service. The Board also finds the September 2020 clarification opinion probative in this case. The opinion provider considered all the evidence of record, to include the Veteran’s assertion that his left ear hearing loss was caused by noise exposure during active service, and opined that the Veteran’s left ear hearing loss was not related to service. The Board finds that this opinion constitutes probative evidence on the medical nexus question, based on a review of the Veteran’s documented medical history, assertions, and physical examination. The opinion provided a clear rationale based on an accurate discussion of the evidence of record, to include consideration of in-service and post-service noise exposure, as well as the Veteran’s reported history regarding his hearing loss. Moreover, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the question presented in this case (i.e., whether any relationship exists between the Veteran’s current left ear hearing loss and service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). An opinion as to whether there is a link between the Veteran’s current left ear hearing loss and service, where there is no evidence of any hearing problems for years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance. There is no other evidence of a relationship between the Veteran’s current left ear hearing loss and service, and he has not alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran’s current left ear hearing loss had its onset in service or within the first post-service year, or that it is otherwise related to service. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not for application, and service connection for left ear hearing loss is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee, status post arthroscopy and meniscectomy, is remanded. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is considered 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). Here, on review of a September 2019 VA examination, the Board finds that it is inadequate. Specifically, the Veteran reported that he has flare-ups of his knee symptoms “in the wintertime” and “can’t do any prolonged walking” Also, he “can’t do anything around the house. Can’t bend down to get into tight spaces. Difficulty with inclines and stairs. Can’t exercise the way I used to. I have to take baby steps . . .” The VA examiner reported that the Veteran’s flare-ups resulted in pain. However, the VA examiner did not estimate the loss of function during flare-ups. In situations where an examination is not conducted during a flare-up, the VA examiner should still estimate the Veteran’s additional functional impairment, in terms of additional range of motion loss, based on the Veteran’s descriptions of his additional loss of function during flare-ups and information gleaned from his medical records. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The VA examiner explained that it would be speculative to estimate the loss of range of motion. He stated that after reviewing the file and examining the Veteran he had “no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up.” This explanation is insufficient to obviate the need for the VA examiner to obtain the estimated loss of motion upon flare-ups. The Veteran’s lay statements, to include those at the VA examination, indicates a loss of function during flare-ups “in the wintertime”—to include the Veteran’s statement that he must take “baby steps” in order to ambulate. Accordingly, a remand is necessary to afford the Veteran a new VA examination. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from Martinsburg Vista electronic records system and are dated to September 2020. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for right foot disability 3. Entitlement to service connection for left foot disability The November 2018 Board decision remanded these claims to obtain a VA medical opinion regarding whether the Veteran’s claimed bilateral foot disability was directly related to service or secondarily related to his service-connected left knee disability. A September 2019 VA examiner subsequently diagnosed the Veteran with hammertoes and bilateral calcaneal spurs. The examiner opined that it was less likely than not that these disabilities were directly related to service, or caused or aggravated by the Veteran’s service-connected left knee disability. However, during the pendency of these claims, the Veteran became service connected for a right knee disability. While the Board has a VA medical opinion regarding the relationship between his left knee and bilateral feet, it lacks the medical information necessary to make a fully informed decision on the relationship, if any, between his now service-connected right knee disability and bilateral feet. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Given that the Veteran generally claims that his knees caused or aggravated his bilateral foot disability, a remand is necessary to obtain an addendum VA medical opinion to determine whether the Veteran’s bilateral foot disability is caused or aggravated by his now service-connected right knee disability. The Board notes that the Veteran has an additional diagnosis of left foot plantar fasciitis per October 2019 CAPRI records. The Board also notes, however, that this disability may have resolved prior to resolution of the claim. Regardless, the Veteran may be entitled to service connection for any disability that manifests at any point during the pendency of the claim, even if it subsequently resolves prior to the resolution of the claim. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Also, all outstanding VA treatment records should be secured upon remand. 4. Entitlement to a TDIU due to service-connected disabilities is remanded. Two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered. Because the AOJ’s implementation of the Board’s award of service connection for hypertension and a decision on the other service connection and higher rating issues remanded here could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). A remand of the inextricably intertwined TDIU claim is therefore required as well. Also, all outstanding VA treatment records should be secured upon remand. Lastly, the Veteran should be given another opportunity to submit a formal claim for a TDIU (VA Form 21-8940). The matters are REMANDED for the following action: 1. Implement the Board’s award of service connection for hypertension, to include the assignment of an initial disability rating. 2. Ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings, especially for the period since November 2013. 3. Obtain and associate with the claims file any outstanding VA and/or private medical treatment records. Specifically, obtain the Veteran’s outstanding VA treatment records from the Martinsburg Vista electronic records system for the period since September 2020; and all such relevant records from any other sufficiently identified VA facility. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician as to the etiology of the Veteran’s claimed bilateral foot disability, to include hammertoes, calcaneal spurs, and left foot plantar fasciitis. The clinician must opine as to the following: (a) Whether any foot disability experienced by the Veteran since approximately November 2013, to include hammertoes, calcaneal spurs, and left foot plantar fasciitis, is at least as likely as not caused by the Veteran’s service-connected right knee disability. (b) Whether any foot disability experienced by the Veteran since approximately November 2013, to include hammertoes, calcaneal spurs, and left foot plantar fasciitis, is at least as likely as not aggravated by the Veteran’s service-connected right knee disability. A complete rationale for all opinions must be provided. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both knees. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. The examiner must provide reasons for any opinion given. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.