Citation Nr: 21023574 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-44 534 DATE: April 21, 2021 ORDER Entitlement to service connection for right ear conductive hearing loss is granted. REMANDED Entitlement to service connection for left knee patellofemoral pain syndrome with instability (hereinafter “left knee disability”) is remanded. Entitlement to service connection for left ear conductive hearing loss is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s currently diagnosed right ear conductive hearing loss had its onset during military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for right ear conductive hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(d), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1979 to February 1986 and from December 1990 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated August 2015 and September 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. By way of procedural background, the Veteran filed her original claim for service connection for bilateral hearing loss in February 1986. In a June 1986 rating decision, the RO denied service connection for “hearing loss, acute, related to otitis media.” The Veteran did not timely appeal the June 1986 denial, nor was new and material evidence received within one year of notification of the rating decision. However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant, official service department records that existed and had not been associated with the claims file when VA first decided the claim, then VA will reconsider the claim de novo. 38 C.F.R. § 3.156(c)(1). In February 1992, July 1999, and January 2015, service treatment records (STRs) relating to the Veteran’s period of active service from January 1979 to February 1986 were associated with the claims file. Although the June 1986 rating decision referred to some specific STRs, it is unclear whether all pertinent records had been associated with the claims file at the time of the decision. Notably, records associated with the claims file in January 2015 included STRs documenting the Veteran’s complaints of decreased hearing along with sensations of fullness, pressure, and feeling clogged. See STRs dated March 1979, March 1980, April 1980, November 1983, February 1985. Given the uncertainty of whether such relevant STRs were associated with the claims file at the time of the June 1986 decision, the Board must resolve all reasonable doubt in favor of the Veteran to find that the 3.156(c) exception to finality applies. Thus, the Veteran’s claim for service connection for right and left ear conductive hearing loss will be adjudicated on a de novo basis rather than on the basis of whether new and relevant evidence has been received. In the June 1986 rating decision, the RO also denied entitlement to service connection for a left knee growth, noted to be a “discolored nodule on the skin just above the left knee” on examination. As the prior claim was one for a dermatological condition of the left knee, and the Veteran’s current claim involves a musculoskeletal condition of the left knee, the Board finds that the current claim is new and distinct and, accordingly, will be adjudicated on a de novo basis rather than on the basis of whether new and relevant evidence has been received. The Board observes that additional VA medical evidence relevant to the Veteran’s claims were added to the claims file after the RO’s adjudication in an August 2016 Statement of the Case (SOC), without a waiver of initial RO consideration. Consequently, in February 2021, the Board sent a letter to the Veteran to inform her that she had a right to have the Agency of Original Jurisdiction (AOJ) review the evidence. In March 2021 Correspondence, the Veteran requested that the matter be remanded to the AOJ for review of the additional evidence. In accordance with the Veteran’s request, the Board will remand the claims of service connection for a left knee disability and for left ear conductive hearing loss. However, since the Board is granting the full benefit sought for service connection for right ear conductive hearing loss, there is no prejudice to the Veteran in proceeding with adjudication of that issue. As an aside, the Board notes there is some ambiguity in the record as to whether, and by whom, the Veteran is currently represented. In a July 2017 VA Form 21-22, the Veteran attempted to appoint the Washington Department of Veterans Affairs (WDVA) as her representative. However, the form was invalid as it was not signed by a Veterans Service Organization (VSO) representative. VA notified the Veteran that the form was incomplete in a January 2021 letter and provided a blank VA Form 21-22 for completion. To date, no completed VA Form 21-22 has been received. However, a March 2021 Statement in Support of Claim was submitted on behalf of the Veteran by a representative from the WDVA. Additionally, at the October 2020 Board hearing, the Veteran was represented by the American Legion even though there is no VA Form 21-22 appointing said representative. Therefore, on remand, the Veteran should be provided another opportunity to clarify her representation and provide a completed VA Form 21-22, with VSO signature. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for right ear conductive hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Unlike sensorineural hearing loss, conductive hearing loss is not encompassed in the list of “chronic diseases” under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. Additionally, precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran asserts that her right ear conductive hearing loss had its onset during active service. As an initial matter, the Board finds that the Veteran is currently diagnosed with a right ear conductive hearing loss disability as defined under 38 C.F.R. § 3.385. See June 2015 VA examination report. Next, in various STRs, the Veteran complained of diminished hearing along with sensations of fullness, pressure, and ears feeling clogged or blocked, and service medical providers noted diagnoses of bilateral otitis media and sinusitis. See STRs dated March 1979 to April 1992. Additionally, the April 1986 VA examiner assessed the Veteran with right ear conductive hearing loss with middle ear effusion for a duration of three months (i.e., since January 1986, during the Veteran’s active service). Accordingly, an in-service event is established. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran’s in-service complaints and her current right ear conductive hearing loss disability. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current right ear conductive hearing loss had its onset during active service. First, the Board finds highly probative the Veteran’s competent and consistent reports that her right ear hearing issues began during active service and have continued ever since. See September 2014 VA audiology consultation report; October 2014 VA otolaryngology consultation report; October 2015 Statement in Support of Claim. Notably, during a September 2014 VA audiology consultation, the Veteran endorsed a long-standing history of hearing loss in her right ear and “reported that in the mid 1980’s she had sudden bloody discharge from her right ear. She reported that she was seen by an ENT and was told it looked similar to an ear injury from deep sea diving. She reported that she had been doing some training in swimming but was not diving. She reported that a PE [pressure equalizer] tube was placed in the right ear that was eventually removed. She reported having no follow-up with ENT since that time. [She] reported noticing a decline in the hearing in her right ear since that time.” Statements, such as these, made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the Veteran has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Second, during the April 1986 VA examination, the Veteran reported recurrent hearing loss with sinus flare-ups, and the VA examiner assessed the Veteran with right ear conductive hearing loss with middle ear effusion for the past three months (i.e., since January 1986). This supports an in-service incurrence of right ear conductive hearing loss as the Veteran was on active duty until February 1986. Furthermore, the June 2015 VA examiner noted that the Veteran’s right ear “conductive loss is first measured in April 1986, 1990, and 1992.” This tends to support the ongoing nature of the Veteran’s right ear conductive hearing loss after her first period of active service. Third, the Board finds the June 2015 and August 2015 VA medical opinions inadequate as they did not address the above-mentioned lay and medical evidence of in-service incurrence and continuing symptoms of right ear conductive hearing loss. Indeed, the August 2015 VA examiner partly relied on a purported lack of STRs “referring to an[y] middle ear issues” to support her negative opinion. However, as discussed above, multiple STRs contain diagnoses of otitis media. Thus, it appears that the August 2015 VA examiner’s negative medical opinion was, at least in part, based on an inaccurate factual premise (that the Veteran did not have STRs documenting “middle ear issues”), and to that extent, it is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). For these reasons, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that service connection for a right ear conductive hearing loss disability is warranted. The appeal is therefore granted. (Continued on the next page) REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. The Veteran asserts that she is entitled to service connection for a left knee disability, to include as secondary to her service-connected right knee disability. The Board finds that remand is necessary prior to appellate review of this claim. In July 2015 and July 2016, the Veteran was provided VA examinations to determine the nature and likely etiology of her claimed left knee disability. The July 2015 VA examiner only provided an etiology opinion as to the Veteran’s right knee disability. Another knee examination was performed in August 2018 related to a claim for an increased rating for her right knee disability and no etiology opinion was provided as to the left knee. The July 2016 VA examiner opined that the Veteran’s current left knee patellofemoral pain syndrome and instability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. On review, the Board finds the July 2016 VA medical opinion inadequate for the following reasons. First, the July 2016 VA examiner did not provide any opinion as to secondary service connection by way the Veteran’s service-connected right knee disability. Instead, the examiner provided an opinion as to direct service connection, finding that the Veteran’s current left knee issues were not incurred in or caused by the trauma to her right knee during service. On remand, the VA examiner should clearly, and separately, address the theories of direct service connection, secondary causation, and secondary aggravation. Second, the July 2016 VA examiner did not address a relevant February 1981 STR in which the Veteran complained that her left knee was giving out frequently and had weakness. On remand, the VA examiner should address this evidence when providing an opinion as to direct service connection. (Continued on the next page) 2. Entitlement to service connection for left ear conductive hearing loss is remanded. The Veteran asserts she is entitled to service connection for left ear conductive hearing loss. The Board finds that remand is necessary prior to appellate review of this claim. In June 2015, the Veteran was provided a VA examination to determine the nature and likely etiology of her claimed bilateral hearing loss. After diagnosing the Veteran with bilateral conductive hearing loss, the June 2015 VA examiner opined that the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service, reasoning that “[o]verall loss appears to be conductive in nature and likely related to sinus/allergy issues together with middle ear dysfunction.” In August 2015, an addendum VA medical opinion was obtained to address the likely etiology of the Veteran’s claimed left ear conductive hearing loss. The August 2015 VA examiner initially opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Then, as part of her rationale, the August 2015 VA examiner opined that the Veteran’s right ear conductive hearing loss is “less likely than not (50% chance or less) NOT ATTRIBUTABLE to a medical condition from the military,” relying, in part, on a purported lack of STRs “referring to an[y] middle ear issues.” On review of the June 2015 and August 2015 VA medical opinions, the Board finds them inadequate for the following reasons. First, the June 2015 and August 2015 VA examiners did not adequately address evidence suggesting an in-service incurrence of conductive hearing loss. Notably, multiple STRs document the Veteran’s complaints of decreased hearing along with sensations of fullness, pressure, and ears feeling clogged or blocked, as well as diagnoses of bilateral otitis media and sinusitis. See STRs dated March 1979 to April 1992. Additionally, during the April 1986 VA examination, the Veteran reported recurrent hearing loss with sinus flare-ups. This evidence should be addressed on remand. Second, while the August 2015 VA examiner was asked to provide an opinion as to the Veteran’s left ear conductive hearing loss, as rationale for the opinion, the examiner referenced both ears and then used a double negative (i.e., “less likely than not (50% chance or less) NOT ATTRIBUTABLE”). On remand, the VA examiner should provide a clear opinion that only addresses the Veteran’s left ear conductive hearing loss. Third, neither the June 2015 nor the August 2015 VA examiner adequately addressed the Veteran’s competent lay reports of experiencing hearing problems since active service. See, e.g., October 2015 Statement in Support of Claim. This evidence should be addressed on remand. Accordingly, the matters are REMANDED for the following action: 1. Send the Veteran VA Forms 21-22 and 21-22a and request that she clarify her representation. 2. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran’s claimed left knee disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to provide an opinion as to the following: (a) Whether the Veteran’s left knee disability at least as likely as not (50 percent probability or greater) had its onset during active service or is otherwise related to it. * Specifically, address a February 1981 STR in which the Veteran complained that her left knee was giving out frequently and had weakness. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left knee disability is either proximately due to OR aggravated by the Veteran’s service-connected right knee disability. * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non- service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). 3. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran’s left ear conductive hearing loss. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to provide an opinion as to whether the Veteran’s left ear conductive hearing loss at least as likely as not (50 percent probability or greater) had its onset during active service or is otherwise related to it. * Specifically, address the following evidence: ** STRs dated March 1979 to April 1992 (documenting the Veteran’s complaints of decreased hearing along with sensations of fullness, pressure, and ears feeling clogged or blocked, and diagnoses of bilateral otitis media and sinusitis). ** April 1986 VA examination report (Veteran reported recurrent hearing loss with sinus flare-ups). ** October 2015 Statement in Support of Claim (Veteran wrote, “[a]s for the hearing problems, this Veteran was flown while in the service with ear infection problems. This aircraft flight, (Naples Italy to Spokane Washington), caused damage to my ears, and I continued to have problems today.”). 4. Review the VA medical evidence received since the August 2016 SOC. 5. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.