Citation Nr: 21021338 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-20 790 DATE: April 12, 2021 ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is denied. REMANDED Service connection for a right knee disorder. Service connection for a left knee disorder. FINDINGS OF FACT 1. The Veteran served on active duty from September 1977 to September 1980. 2. A diagnosis of right or left ear hearing loss has not been shown. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred in service. 38 U.S.C. §§ 1131, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. Left ear hearing loss was not incurred in service. 38 U.S.C. §§ 1131, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal was previously before the Board in January 2020. In connection with this appeal, the Veteran testified before a Veterans Law Judge (VLJ) in September 2019. Unfortunately, that VLJ is no longer with the Board and the Veteran was notified of such in January 2021 correspondence. He replied in February 2021 that he did not wish to appear for a hearing with another VLJ; thus, there is no bar to proceeding with the appeal. Service Connection for Left and Right Ear Hearing Loss Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the 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. First, the Veteran has not been diagnosed with bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. Specifically, a May 2014 audiogram revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 15 10 15 LEFT 15 20 20 10 15 The average pure tone threshold was 11 in the right ear, and 16 in the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear. Later, a January 2020 VA audiology evaluation revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 25 25 LEFT 15 20 30 20 20 The average pure tone threshold was 20 in the right ear, and 21 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in both ears. While worsening was shown in the January 2020 VA examination, significant sensorineural hearing loss was shown only in higher frequencies. Additionally, sensorineural hearing loss was shown in the left ear as diagnosed by the VA examiner, the audiometric examination results did not meet the definition of hearing loss as defined by VA. 38 C.F.R. § 3.385. Additionally, VA and private treatment records do not contain any audiometric findings which support a current diagnosis of hearing loss. Therefore, the medical evidence does not support the claim. The Board has considered the Veteran’s lay statements that his bilateral hearing loss was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matter involved. Further, at the September 2019 hearing, he stated that he didn’t notice hearing loss until long after service, in the 1990s. (Board Transcript, p 11-12.) Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeal for service connection for bilateral hearing loss is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The matters of service connection for left and right knee disorders were remanded by the Board in January 2020. At that time, the Board directed the examiner to consider, and address, the April 2014 VA ankle report which revealed that the Veteran had difficulty walking due ot his service-connected right ankle disorder and that he regularly used a brace and cane to assist. The examiner was also directed to consider and address the July 2013 physical therapy consult indicating antalgic gait due to knee and ankle pain. Unfortunately, the examiner failed to address or discuss these findings in the Veteran’s record. Additionally, the examiner seemingly focused only on whether the Veteran’s bilateral knee osteoarthritis was due to the in-service ankle sprain, and not the current ankle disorder, which has been diagnosed as osteoarthritis, and is service-connected. The VA opinion did not substantially comply with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) Finally, in his December 2013 claim, the Veteran noted that his bilateral knee disorders could also be due to popping experienced in service. However, no direct service connection opinion has been obtained. Thus, remand is necessary. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records and associate them with the claims file. 2. Obtain an addendum opinion from a different VA examiner which assess the likely etiologies of the Veteran’s bilateral knee disorders, to include the diagnosed osteoarthritis. The claims file should be made available to, and reviewed by, the examiner. Another examination should not be scheduled unless deemed necessary by the examiner. Based on a review of the evidence, the examiner is asked to provide an opinion as to: a. Whether it is at least as likely as not (50 percent probability or greater) that any diagnosed right or left knee disorder was due to the Veteran’s active duty service. b. Whether it is at least as likely as not (50 percent probability or greater) that any diagnosed right or left knee disorder was caused by, proximately due to, or aggravated beyond its natural progression by, his service-connected right ankle osteoarthritis. The examiner is asked to consider and address the reports of abnormal gait discussed above. A thorough rationale is required for any opinion rendered. Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub 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.