Citation Nr: 21020927 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-36 123A DATE: April 8, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral hip disability, to include radiculopathy, is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his right ear hearing loss is at least as likely as not related to exposure to hazardous noise during service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to May 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in February 2021. Entitlement to service connection for right ear hearing loss is granted. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an 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). 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; 38 C.F.R. § 3.102. Certain chronic diseases, including bilateral hearing loss, may be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 38 C.F.R. §§ 3.307, 3.309(a). Moreover, if those same diseases are noted during service, continuity of symptomatology can show chronicity and subsequent manifestations of the same disease is presumed to be service connected. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-99 (1997) (overruled on other grounds by Walker, 708 F.3d 1331). The Veteran asserts his current hearing loss disability is the result of hazardous noise exposure during service. For the purposes of applying the laws administered by VA, hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz is 40 decibels 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. A September 2015 VA examination confirms the Veteran has a bilateral hearing loss disability as defined by VA. The September 2015 VA examiner opined that the Veteran’s left ear hearing loss was at least as likely as not a result of military noise exposure due to a documented in-service threshold shift in the Veteran’s left ear at 6000 Hz. More specifically, the examiner noted that (1) there was a significant threshold shift of 20 dB noted at 6000 Hz in the Veteran’s left ear when comparing his entrance and exit examinations, which is indicative of noise injury, and (2) other audiograms from 1986 – 1996 show progressive hearing loss at 6000 Hz in the Veteran’s left ear. The Board finds that the Veteran experienced similar threshold shifts at 4000 and 6000 Hz in his right ear such that same rationalization for service connection applies to the Veteran’s right ear hearing loss. More specifically, the Veteran experienced a significant threshold shift of 20 dB at 4000 Hz in the Veteran’s right ear when comparing his June 1986 baseline audiogram with a June 1991 audiogram. In addition, the National Institute for Occupational Safety and Health identifies a significant threshold shift as a change of 15 dB of hearing loss at any single frequency. The Veteran experienced a 15 dB threshold shift at 6000 Hz in his right ear during his time in service when comparing his entrance exam with an April 1993 audiogram. Pursuant to the September 2015 VA examiner’s opinion, these significant threshold shifts indicate noise injury. In addition, other audiograms from 1986 – 1996 show progressive hearing loss at 6000 Hz in the Veteran’s right ear. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds service connection for right ear hearing loss is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a knee disability is remanded. The Veteran was afforded a VA knee examination in September 2015. The Board finds this examination to be insufficient for the following reasons. First, the VA examiner noted that the Veteran had only one in-service medical visit related to his right knee pain, however, the VA examiner failed to note that the December 1992 service treatment record indicated that the Veteran’s knee pain was chronic. Second, the VA examiner noted that the Veteran did not have any right knee complaints, however, the VA examiner did not address the Veteran’s contention that he has experienced right knee pain since his time in service. Third, the VA examiner noted that the Veteran is relatively young for primary knee osteoarthritis. It is unclear to the Board how this supports the VA examiner’s finding that the Veteran’s right knee condition is less likely than not related to his service. Finally, the VA examiner failed to provide a nexus opinion regarding any left knee disabilities. Accordingly, remand for a new VA opinion is warranted. The Board notes that the Veteran testified at the Board hearing that his left knee disability may be due to his right knee and/or back disabilities. Should service connection for the Veteran’s right knee and/or back disabilities be granted, an opinion based on the theory of secondary service connection should be obtained. 2. Entitlement to service connection for a back disability is remanded. The Veteran was afforded a VA back examination in September 2015 which the Board finds is inadequate for the following reasons. First, the VA examiner failed to address the Veteran’s May 1996 report of medical history upon separation from service in which the Veteran reported recurrent back pain and lower back pain with heavy lifting. Second, the September 2015 VA examiner noted that the Veteran’s diagnosis of degenerative arthritis affecting the spine typically affects individuals over the age of 60. It is unclear how this supports the VA examiner’s findings that the Veteran’s back condition is less likely than not related to his service as the Veteran was 47 years old at the time of the examination. Finally, the VA examiner did not address the Veteran’s contention that his back pain started in service and has continued since he left service. The Board notes that the Veteran testified at the Board hearing that his back disability may be due to his knee disabilities. Should service connection for any knee disability be granted, an opinion based on the theory of secondary service connection should be obtained. 3. Entitlement to service connection for radiculopathy, claimed as a bilateral hip disability, is remanded. Pursuant to the February 2021 Board hearing, the claim for service connection for a bilateral hip disability on appeal has been recharacterized as noted above. The issue of entitlement to service connection for radiculopathy is inextricably intertwined with the Veteran’s claim of entitlement to service connection for a back disability, and therefore, is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran’s VA treatment records establish that the Veteran suffers from acquired psychiatric disorders such as dysthymic disorder, anxiety disorder, and depressive disorder. The Veteran has testified that he began experiencing psychiatric symptoms while he was in service, related to the limitations he says he experienced because of orthopedic issues and related to his personal life, including his divorce in service. The Veteran has not been afforded a VA examination for his acquired psychiatric disorders. As there is an indication that his acquired psychiatric disorders may be related to service, an examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA is obliged to provide an examination where there is insufficient information to decide the claim and there is an indication the current disability may be associated with service). Accordingly, remand for a VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain an opinion from a qualified clinician to determine whether any knee disability found during the period on appeal is related to the Veteran’s military service.  If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should identify all knee disabilities found during the period on appeal. For each knee disability identified during the period on appeal the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service.  In doing so, the examiner must address the Veteran’s (1) December 1992 service treatment record noting chronic knee pain, (2) contention that he experienced right knee pain in service, particularly while running, and continuously sought treatment for his right knee in service, but he was not seen by a doctor and was only provided pain medication, (3) contention that he has experienced pain in both his right and left knee continuously since his time in service and (4) contention that his increasing weight and slower running times in service are evidence of his in-service knee pain. The Veteran contends that he has a current left knee disability that was either caused or aggravated by his right knee disability or his back disability. If any right knee or back disability is granted service connection, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any left knee disability found during the appeal period was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected right knee and/or back disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran’s left knee disability prior to aggravation by the service-connected right knee and/or back disability. Please note, causation and aggravation are separate concepts and must be addressed independently. The clinician should be advised that pain alone, even without an identifiable underlying diagnosis, can constitute a current disability.  Therefore, if no knee disability is diagnosed during any part of the appeal period, the clinician must opine as to whether the Veteran’s knee pain during the course of the appeal results in functional impairment.  If the knee pain does result in functional impairment, the clinician must opine as to whether the knee pain is related to the Veteran’s military service.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so.  The Veteran’s report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records.  All findings must be reported in detail and all opinions must be accompanied by a clear rationale.  If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Obtain an opinion from a qualified clinician to determine whether any back disability found during the period on appeal is related to the Veteran’s military service.  If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should identify all back disabilities found during the period on appeal. For each back disability identified during the period on appeal the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service.  In doing so, the examiner must address the Veteran’s (1) March 1990 service treatment record noting back pain on breathing, (2) July 1994 service treatment record noting an upper back strain, (3) May 1996 report of medical history which notes recurrent back pain and lower back pain with heavy lifting, (4) contention that his daily duties in service included loading weapons, which resulted in lifting heavy objects in awkward positions, causing constant back pain, (5) contention that his back pain started in service and has continued since he left service, and (6) contention that his increasing weight and slower running times in service are evidence of his in-service back pain. If any knee disability is granted service connection, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any back disability found during the appeal period was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected knee disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran’s back disability prior to aggravation by the service-connected knee disability. Please note, causation and aggravation are separate concepts and must be addressed independently. The clinician should be advised that pain alone, even without an identifiable underlying diagnosis, can constitute a current disability.  Therefore, if no back disability is diagnosed during any part of the appeal period, the clinician must opine as to whether the Veteran’s back pain results in functional impairment.  If the back pain does result in functional impairment, the clinician must opine as to whether the back pain is related to the Veteran’s military service.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so.  The Veteran’s report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records.  All findings must be reported in detail and all opinions must be accompanied by a clear rationale.  If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Obtain an opinion regarding the Veteran’s claim of service connection for an acquired psychiatric disorder. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should state whether the Veteran has had any acquired psychiatric disorder at any point during the period on appeal. In doing so, the examiner must address the Veteran’s VA treatment records reflecting diagnoses of dysthymic disorder, anxiety disorder, and depressive disorder. For any acquired psychiatric disorder found during the appeal period, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder began in or is otherwise related to the Veteran’s service. In doing so, the examiner must address the Veteran’s contentions that his symptoms, including depression and anxiety, (1) started while in-service when his knee began hurting, making it difficult to perform his duties, and (2) escalated in service after he returned from the Gulf War and he continued to suffer from knee pain, his spouse left him, and he became a single parent to three children. The examiner must also address the Veteran’s contentions that (1) his increasing weight and slower running times in service are evidence of his in-service pain and depression, and (2) he has experienced depression and anxiety continuously since his time in service. Veteran’s report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. If any knee and/or spine disability is granted service connection, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder found during the appeal period was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected disabilities. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran’s acquired psychiatric disorder prior to aggravation by the service-connected disabilities. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale.  If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.