Citation Nr: 21015553 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-02 960 DATE: March 17, 2021 ORDER Service connection for bilateral hearing loss is granted. REMANDED The issue of a rating in excess of 20 percent for a right knee disability is remanded. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran’s current bilateral hearing loss for VA purposes had its onset during or is otherwise related to the Veteran’s period of active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. §§1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1974 to November 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a Board hearing. A transcript of the hearing has been associated with the virtual file. In September 2018, the Board denied service connection for bilateral hearing loss, granted service connection for tinnitus, and remanded the right knee increased rating claim. The Veteran appealed the September 2018 denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Memorandum and Decision, the Court vacated the September 2018 decision to the extent it denied service connection for bilateral hearing loss because the Board failed to consider service connection based on continuity of hearing loss symptoms, to include the Veteran’s lay statements of ongoing in-service and post-service hearing problems. A May 2020 rating decision granted a 20 percent rating for the Veteran’s service-connected right knee disability, effective December 30, 2010. Although an increased rating was granted, the Veteran has not expressed satisfaction and is presumed to be seeking the maximum benefit allowed by law and regulation; accordingly, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Service Connection Service connection for bilateral hearing loss. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated by active military service. 38 U.S.C. §§1110, 1131; 38 C.F.R. § 3.303. In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. As the disability in question, hearing loss, is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be established based on continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). In a claim of service connection for impaired hearing, demonstration of the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; the auditory thresholds for at least three of these 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. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 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 benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran contends that bilateral hearing loss was caused by active service from working as a carpenter on a flight deck. Specifically, the Veteran contends hearing loss, to include ringing of the ears, began during active service and has been continuous since discharge from service. See July 2018, Hearing transcript. After review of the record, the Board finds that the criteria for service connection for bilateral hearing loss have been met. The Veteran has an auditory threshold of 45 dB at 3000 Hz in the left ear and 40 dB at 4000 Hz in the right ear. See November 2012, VA treatment record; April 2011, VA examination. The Board, accordingly, finds bilateral hearing loss for VA purposes. The Veteran’s DD-214 shows his military occupational specialty (MOS) was a bomb director and technician. The Board, accordingly, concedes in-service noise exposure. In April 2011, a VA examination for hearing loss was conducted. The VA examiner found tinnitus was as likely as not a symptom of hearing loss but opined that the Veteran’s hearing loss was not related to in-service noise exposure. The examiner reasoned audiometric tests at enlistment and separation showed normal hearing without significant shifts and there is no scientific basis for delayed onset of noise-induced hearing loss. See April 2011, VA examination. The Board accords little probative weight to the examiner’s negative etiology opinion for hearing loss as the examiner did not have the opportunity to consider and address lay evidence of the onset and continuing symptoms of hearing loss, to include ringing of the ears, from the Veteran’s July 2018 testimony. See April 2011, VA examination; see also Nieves-Rodriguez, 22 Vet. App. 295 at 304; Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). In light of the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether current bilateral hearing loss had its onset in or is otherwise related to the Veteran’s period of active service. See 38 C.F.R. §§ 3.102, 3.303. The Board acknowledges the April 2011 VA examiner’s finding that tinnitus is as likely as not a symptom of hearing loss and finds the Veteran’s lay statements regarding the onset and continuous symptoms of hearing loss, to include ringing of the ears, since discharge from service to be competent, credible, and accords high probative weight to same probative. See July 2018, Hearing transcript; see also Jandreau, 492 F.3d at 1377. Resolving all reasonable doubt in the Veteran’s favor, the Board finds service for bilateral hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 57-58. REASONS FOR REMAND The issue of a rating in excess of 20 percent for a right knee disability. The Veteran contends his service-connected right knee is painful, swells daily, is stiff, occasionally gives way, is unstable, and makes it difficult to walk distances or take the stairs. The Veteran also stated he uses a rollator walker to assist with ambulation and stability, occasionally uses a right knee brace, and takes Tylenol for pain. See July 2019, VA examination; July 2018, Hearing transcript. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The Veteran’s right knee disability is currently rated under Diagnostic Code (DC) 5261 which now provides a separate rating for recurrent subluxation or lateral instability of the knee and patellar instability under DC 5257. Id. at 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). As the record does not contain sufficient evidence to rate the Veteran’s right knee disability under the new rating criteria, a new examination is warranted. Additionally, the Board notes that the record indicates the Veteran has been receiving Social Security disability benefits for both knees and his back since 2011, but those records have not been requested or associated with the claims file. See July 2019, VA examination; April 2012, VA treatment record. Further, the claims file has VA treatment records through September 2014. On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran’s claims file. The matter is REMANDED for the following action: 1. Obtain the Veteran’s social security records and associate them with the claims file. If such records are unavailable, such unavailability should be documented in the record. 2. Obtain all outstanding records of VA evaluation and/or treatment records of the Veteran dated since September 2014 and associate them with the claims file. 3. After completing directives #1 and #2, schedule the Veteran for a VA examination to determine the current severity of his service-connected right knee disability. The examiner should review the virtual file and address the following: (a.) Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe frequency, severity, and functional impairment associated with the Veteran’s right knee disability in sufficient detail to allow for application of the pertinent rating criteria. (b.) The examiner must complete range of motion studies that include the Veteran’s active motion, passive motion, pain with weight-bearing and without weight-bearing for both knees. The examiner should also note any further functional limitations due to pain, weakness, fatigue, lack of endurance, incoordination, or any other symptom resulting in functional loss. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If feasible, the examiner must assess the additional functional impairment on repeated use over time and during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, 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). Recent caselaw has held that the lack of opportunity to observe during a flare-up and/or after repeated use over time is an insufficient basis for not estimating the functional effects in terms of degrees of range of motion. The Board notes that the lack of opportunity to observe during a flare-up and/or after repeated use over time is an insufficient basis for not estimating the functional effects in terms of degrees of range of motion. The Veteran is competent to report his symptoms, experiences, and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.