Citation Nr: 21022474 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-19 743A DATE: April 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST), depression, and anxiety, is remanded. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.306, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1977 to September 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In June 2020, the Board remanded the claims to the AOJ (agency of original jurisdiction) for a review of the claim file, to specifically include the additional evidence submitted to the record after the May 2019 supplemental statement of the case, and to thereafter readjudicate the issues on appeal. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his bilateral hearing loss is related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. He underwent a VA audiogram in July 2014, which is as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 20 dB 20 dB 5 dB 20 dB 30 dB Left 20 dB 15 dB 5 dB 20 dB 30 dB The left ear showed 94 percent speech discrimination, with average decibel loss of 18. The right ear showed a speech discrimination of 96 percent, with average decibel loss of 19. The July 2014 VA audiogram findings does not show a hearing loss disability as defined by VA. The Board concludes that the Veteran does not have a current diagnosis of hearing loss disability for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran has not indicated specific evidence of change in hearing acuity since this VA hearing loss examination. The Board acknowledges evidence of hearing loss in service and opinion evidence regarding a link between the Veteran’s service and loss of hearing acuity. Without evidence of a hearing loss disability as defined by VA under 38 C.F.R. § 3.385 during any time in the appellate period, however, the appeal must be denied on this basis. If subsequent audiometric testing reflets such a hearing loss disability, the Veteran is encouraged to refile for service connection for a hearing loss disability. Accordingly, as the preponderance of the evidence weighs against service connection, this claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Entitlement to service connection for left knee disability. The Veteran contends that his left knee disability is related to service. In a May 2018 correspondence, he stated that his knees “popped” during service. In an October 2018 letter from the Veteran’s private provider, the physician stated that the Veteran has severe left knee arthritis. VA medical records further show that he has a left knee meniscus tear with degenerative joint disease. The Board regrets the further delay but finds that a duty to assist attaches to this appeal to afford the Veteran a VA examination with medical opinion regarding his left knee. The VA will provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the veteran qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service but there is insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD due to MST, depression, and anxiety. The Veteran contends that his acquired psychiatric disorder, to include PTSD, is due to military sexual trauma (MST). In his claim for service-connection, he has also indicated anxiety and depression and current psychiatric disorders. The Court of Appeals for Veteran Claims (Court) has held that a claim for service connection for a psychiatric disorder encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1(2009). The Board has broadened the claim under Clemons, and will consider whether a broader claim for service connection is warranted for an acquired psychiatric disorder to include PTSD due to MST, depression, anxiety. The Veteran and his representative contend that remand is warranted to consider various diagnoses under the broader claim of service connection for acquired psychiatric disorder. They further contend that there is sufficient verifiable stressor for PTSD and the Veteran should be afforded a VA examination that addresses his assertions regarding an MST stressor relating to PTSD. The record contains a VA March 2016 examination report with opinion and an August 2018 letter from the Veteran’s private provider that contains opinion evidence. The Board finds that neither opinion is sufficient to adjudicate the claim in appellate status based on the diagnoses and contentions of record. The Board remands to obtain this opinion. Accordingly, the matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his left knee disability. The examiner should review the records and state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability is etiologically related to his period of service. The examiner should address the Veteran’s lay statements that his knee “popped” in service. A complete rationale should be provided to support the conclusion. 3. After completing directive #1, schedule the Veteran for an examination with an appropriate clinician to determine whether he has any acquired psychiatric disorder. The examiner is asked to review the records, including his personnel records and any evidence submitted by the Veteran, and provide an opinion as to the following: a) whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a psychiatric disorder that is related to his period of service. b) whether it is at least as likely as not that the Veteran has PTSD due to an in-service military sexual trauma (MST). The examiner should address any psychiatric disorders noted in service and currently. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, 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.