Citation Nr: 21016002 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-11 491 DATE: March 19, 2021 REMANDED Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities of pes planus and right foot fracture residuals, is remanded. Entitlement to service connection for hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1967 to October 1970. This matter comes before the Board of Veteran’s Appeals (Board) from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2019 when the claim of service connection for hearing loss was denied and the claim of service connection for a right knee disability was remanded for development. The Veteran disagreed with the Board’s March 2019 decision denying service connection for hearing loss and appealed to the United States Court of Appeals for Veterans Claims (CAVC). In January 2020, CAVC granted a Joint Motion for Remand (JMR) where the parties requested vacatur of the March 2019 Board decision as to the claim of service connection for hearing loss. In June 2020, pursuant to CAVC’s directives, the Board remanded the claim of service connection for hearing loss for a VA examination. The claim is now before the Board. The Board finds the March 2019 remand directives, regarding the claim of service connection for a right knee disability, as well as the June 2020 remand directives regarding the claim of service connection for hearing loss have not been substantially complied with, and the matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities of pes planus and right foot fracture residuals, is remanded. The Veteran seeks service connection for a right knee disability. In favor of his claim, the Veteran asserts that his right knee disability is secondary to having broken his foot in service. He asserted that the pain, made him walk a certain way, which has affected his knee. See hearing transcript page 7. The Veteran is service connected for bilateral pes planus (flatfeet) and for a right foot residual fracture tarsal navicular. Pursuant to the March 2019 Board remand directives, the Veteran was administered a Knee and Lower Leg Conditions Disability Benefits Questionnaire (Knee DBQ) for his right knee disability in October 2020 where a diagnosis of right knee joint osteoarthritis was noted. Following the examination, the examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service connected pes planus condition as the examiner was unable to find any peer-reviewed studied linking pes planus to knee osteoarthritis. Additionally, the examiner noted other risk factors for osteoarthritis such as age, gender, genetics, joint injury and anatomic factors. See medical opinion for secondary service connection, dated October 2020. The examiner also opined that the Veteran’s right knee osteoarthritis is related to the normal aging process and noted that he was not able to determine a baseline level of severity based upon the medical evidence available prior to aggravation or the earlier medical evidence following aggravation by the service-connected disability. See medical opinion for aggravation of a nonservice connected condition by a service-connected condition dated October 2020. Additionally, the examiner opined that the claimed condition was less likely than not related to the Veteran’s service as the Veteran’s service treatment records do not show any right knee related injury or illness during his military service. See medical opinion for direct service connection of October 2020. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the medical opinion for aggravation of a nonservice connected condition by a service-connected condition dated October 2020 inadequate for adjudication purposes as it only addressed the question of causation and did not opine whether the Veteran’s flat feet aggravate his right knee disability, as requested in the March 2019 remand directives. Further, the Board notes examiner did not opine on whether the Veteran’s right knee osteoarthritis could be caused by or aggravated by his service-connected right foot fracture residuals, as the Veteran asserted in his testimony before the Board. Accordingly, the Board finds a remand is necessary to obtain an addendum opinion where the examiner addresses whether the Veteran’s service-connected flat feet aggravate the Veteran’s right knee disability in compliance with the Board remand directives of March 2019, and that addresses the Veteran’s assertion that his right knee osteoarthritis is secondary to (caused by or aggravated by) his service-connected right foot fracture residuals. Additionally, the Board finds the medical opinion for direct service connection inadequate for adjudication purposes as the examiner relied on the absence of contemporaneous medical evidence to substantiate a negative nexus opinion. Thus, the Board finds the RO must obtain a new medical opinion regarding the direct service connection theory of entitlement. 2. Entitlement to service connection for hearing loss is remanded. The Veteran seeks service connection for hearing loss. In favor of his claim, the Veteran asserts that his hearing loss began in service. See hearing transcript page 3. Pursuant to the June 2020 Board remand directives, the Veteran was administered a Hearing Loss and Tinnitus Disability Benefits Questionnaire (Hearing Loss DBQ) in August 2020. See Hearing Loss DBQ of August 2020, associated with the claims file in October 2020. The Board notes that the objective findings noted in this examination, show the Veteran has hearing loss for VA purposes in his left ear and that the Veteran’s current right ear hearing loss is nearly at the extent recognized as a disability for VA purposes, but does not meet the disability criteria for VA purposes. Following the examination, the examiner subscribed a medical opinion where he opined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. In favor of this opinion the examiner noted that the Veteran’s post service treatment records show that he had normal hearing in 2012. He also noted that although the Veteran’s hearing status at separation from service is unknown, as there are no separation audiological examination results, that the Veteran’s hearing loss presented later than 2012. Accordingly, and in consideration of the associated factors for hearing loss, such as life issues and presbycusis, the examiner found the hearing loss to not be associated to the Veteran’s service. See Hearing Loss DBQ of August 2020. The Board finds this medical opinion does not fully comply with the Board remand instructions of June 2020 as the examiner did not address the in-service incurrences noted in the directives, and is inadequate for adjudication purposes, for the reasons discussed below. First, the Veteran’s service treatment records (STRs) show that he was administered an audiological examination for entrance into service in December 1966, but not for his separation from service. Therefore, the status of the Veteran’s hearing at the time of his separation from service is unknown. See STRs. However, the Veteran’s STRs show that in November 1967, the Veteran was seen by a physician because he slipped while cleaning his ear and the “q-tip” perforated the right ear drum. The Veteran was prescribed tetracycline. The physician’s examination, days later after the incident, revealed no perforation. The Veteran’s hearing was also tested in December 1967, and the results were deemed to be within normal limits. See STRs for November 1967, and audiogram dated December 1967. The examiner did not note whether he had considered this 1967 audiogram when rendering his opinion, or whether the audiogram of 1967 shows a standard threshold shift when compared to the audiogram administered to the Veteran for entrance into service, dated December 1966. Secondly, prior to November 1967, service department audiometric results were reported using standards set forth by the American Standard Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Since VA’s current definition of a hearing loss disability is based on ISO-ANSI units, audiograms dated before November 1967, and any records dated after November 1967 that indicate the use of ASA units, must be converted from ASA to ISO-ANSI before adjudication of a hearing loss claim. ASA units are converted to ISO-ANSI units by adding 15 decibels to the finding at 500 hertz (Hz); 10 decibels to the findings at 1000 Hz, 2000 Hz, and 3000 Hz; and 5 decibels to the finding at 4000 Hz. The Board notes that the examiner did not convert the audiogram administered to the Veteran for entrance into service from ASA to ISO-ANSI units before rendering his opinion. Additionally, the December 1967 audiological examination notes the results using the standards set forth by the ASA. Thus, these results must also be converted from ASA to ISO-ANSI. Finally, the Veteran testified at the hearing that his military occupational specialty (MOS) was as a boatswain’s mate (i.e. serviceman). See hearing transcript page 3. His DD-214 does not show a specific MOS name, but it notes the code “SH-0000”. See DD-214. The Board notes that “SH-0000” corresponds to the MOS of “ships serviceman”. VA's Duty Military Occupational Specialty (MOS) Noise Exposure Listing reflects that both the MOS of boatswain's mate, as well as the MOS of “serviceman”, have a high probability of noise exposure. However, the examiner that subscribed the medical opinion of record, did not consider the Veteran’s noise exposure in service when rendering his opinion and limited his rationale to noting the Veteran’s age, the time since his separation from service, and the possible onset of hearing loss to provide a negative nexus opinion. Accordingly, based on the above stated reasons, the Board finds a remand is necessary to ensure compliance with the June 2020 Board remand instructions, and to obtain a new medical opinion that addresses the likely etiology of the Veteran’s hearing loss. Additionally, the Board notes that sensorineural hearing loss is a condition that typically worsens over time, and at the August 2020 examination, the Veteran’s right ear hearing loss was nearly at the extent recognized as a disability for VA purposes. As such, considering the Board must remand for a new medical opinion, on remand the AOJ should also schedule the Veteran for a new and contemporaneous examination regarding his bilateral hearing loss. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following actions: 1. Update existing medical records. Any response, including negative responses, must be associated with the claims file. 2. Obtain an addendum opinion regarding the Veteran’s right knee disability. The examiner is asked to opine: a. whether the Veteran’s right knee disability is caused by or aggravated by the Veteran’s service-connected flatfeet disability. b. whether the Veteran’s right knee disability is caused by or aggravated by the Veteran’s right foot fracture residuals. Both causation and aggravation must be addressed. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease. c. If aggravation by any of the above mentioned service-connected disabilities is found, the examiner must identify the baseline level of severity of the nonservice-connected disease or injury by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. See 38 C.F.R. § 3.310 (b). If this cannot be done, it should be explained why. d. If the Veteran’s right knee disability is found to not be caused by or aggravated by his service-connected flatfeet or right foot fracture residuals, the examiner must subscribe an addendum medical opinion addressing whether the Veteran’s right knee disability is at least as likely as not etiologically related to service. 3. Schedule the Veteran for a new audiological examination. Following the examination, the examiner is must: a. Convert the December 1966 and the December 1967 audiological reports from ASA units to ISO-ANSI, and note this conversions on the report. b. Note whether a standard threshold shift between the two examinations is shown. c. Consider the Veteran’s MOS and his high probability of noise exposure. d. Opine whether the Veteran’s hearing loss is at least as likely as not etiologically related to his service. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided based on the evidence of record and specifically state whether the inability to provide an opinion is due to the limits of the examiner’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would allow for an opinion on this matter. 4. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.