Citation Nr: 21023600 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-17 031 DATE: April 21, 2021 ORDER Entitlement to service connection for left hip degenerative joint disease, secondary to the Veteran’s service-connected knee disabilities, on a causation basis, is granted. Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an evaluation in excess of 20 percent for residuals of fracture of the left patella with degenerative joint disease is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s left hip degenerative joint disease was caused by his service-connected knee disabilities. 2. The evidence is at least evenly balanced as to whether the Veteran’s left ear hearing loss is related to noise exposure during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left hip degenerative joint disease, secondary to the Veteran’s service-connected knee disabilities, on a causation basis, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to February 1970 and is a recipient of the National Defense Service Medal and the Air Force Outstanding Unit Award. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the October 2012 rating decision notification letter, the RO explained that it denied service connection for degenerative joint disease of the right knee, degenerative joint disease left hip, and bilateral hearing loss, and reduced the Veteran’s rating for residuals of fracture of the left patella with degenerative joint disease from 20 percent to 10 percent effective August 1, 2012. The Board has bifurcated the claim for service connection for bilateral hearing loss for the reasons indicated below. Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA’s discretion). The Veteran disagreed with the decision in October 2013, and following a March 2016 Statement of the Case continuing the denial of service connection for degenerative joint disease left hip secondary to left knee degenerative joint disease and service connection for bilateral hearing loss, the Veteran appealed to the Board. In his April 2016 appeal to the Board, the Veteran included the issues of residual of fracture of left patella with degenerative joint disease, degenerative joint disease right knee second to left knee, degenerative joint disease left hip secondary to left knee, and hearing loss. The RO granted service connection for degenerative joint disease, right knee, and restored the Veteran’s 20 percent evaluation for residuals of fracture of left patella with degenerative joint disease in a March 2016 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2021. The transcript is in the claims file for review. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 1. Service connection for left hip degenerative joint disease Treatment records show the Veteran has arthritis in his left hip. He was diagnosed with degenerative joint disease at an August 2012 VA examination, and VA treatment records show X-Rays indicate osteoarthritis. Thus, the current disability element has been met. The service treatment records do not reflect documentation of hip treatment. A December 1969 separation report of medical examination noted there were no disqualifying effects for separation and upon clinical evaluation the Veteran’s lower extremities were found to be normal. The Veteran testified at the February 2021 Board hearing that he would favor one side of his body to keep from putting too much weight on his painful knee. He said this wore down his opposed knee, and it is wearing on his hip now as well. In a February 2006 statement, the Veteran said he was having problems with his right knee due to the wear on the joint from weight shift and gait disturbance caused by his left knee. In August 2006, the Veteran had written to VA regarding developing a right knee disability secondary to the weight shift by his service-connected left knee. In October 2013, the Veteran wrote that his left leg has caused a severe weight shift and gait disturbance which has created a major degenerative effect on the right knee and left hip. In an April 2012 VA examination for the Veteran’s knees, the examiner noted an antalgic gait favoring the right lower extremity and that the Veteran’s cane tip showed medium wear. At an August 2012 VA examination for the Veteran’s knees, the Veteran’s right knee had become more symptomatic than the left, with daily pain and stiffness. It was found that the Veteran’s knees caused a functional loss of less movement than normal, weakened movement, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. He used a cane regularly. At an August 2012 VA examination for the Veteran’s hips, the Veteran reported insidious onset of left hip pain over the previous three years, had no recollection of any specific trauma to the hip, and he denied ongoing symptoms with the right hip. Diagnostic testing showed degenerative joint disease in both of the Veteran’s hips. Citing a single reference from 1994, the August 2012 VA examiner opined that the weight of medical literature is against a relationship that the Veteran’s left hip was at least as likely as not the result of the Veteran’s service-connected condition. The examiner relied on X-Rays showing a similar degree of arthritis in both hips and wrote these findings give further support to the premise that his hip arthritis is actually a result of natural progression as opposed to having occurred secondarily to the service-connected left knee. In his April 2016 appeal to the Board, the Veteran wrote that while the VA examiner may have found his hips were similar, his symptoms are much more pronounced in his left hip and that anyone visually watching him walk can see a limp and there is extreme extra pressure on the left hip joint. He also pointed out that while there is no positive nexus letter regarding his left hip claim, there are three professional medical letters in the claims file regarding his right knee based on the same causal problem of weight shift, gait disturbance, and limping, and that one cannot disassociate the degenerative arthritis of one joint from that found in another joint that is subject to the same stress. Indeed, the claims file contains multiple private medical opinions from April 2012 supporting unilateral stress on a joint due to favoring a disabled lower extremity. As noted previously, the Veteran’s right knee disability was granted service connection in March 2016. While the April 2012 VA examiner wrote that similar X-Ray results would support a finding that the Veteran’s degenerative joint disease was a natural progression of the Veteran’s bilateral hips, the examiner did not consider that the Veteran’s right knee disability had also developed from the Veteran’s service-connected left knee, and that the Veteran’s left hip was also at that time more symptomatic. The opinion is not afforded probative weight. More compelling are the Veteran’s testimony and private opinion letters connecting a lower extremity disability to an altered gait due to service-connected disability. The premise of facts is also supported by the Veteran’s statements and the medical record showing an altered gait and reports of pain in treatment reports. The Veteran is competent to report his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). There is nothing to explicitly contradict the Veteran’s testimony, and that testimony is consistent with the evidence of record. As the weight of the evidence of record indicates that the Veteran’s left hip disability is caused by his service-connected knee disabilities, entitlement to service connection, on a causation basis, is warranted. As service connection is being granted on a secondary basis, other theories of entitlement need not be considered. 2. Service connection for left ear hearing loss A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving pure-tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran testified at the February 2021 Board hearing regarding his hearing loss disabilities. He argued that his tinnitus was service connected based on his noise exposure in service, and so his hearing loss should be service connected as well. He testified that he was exposed to very loud noises during service and his hearing loss is related to his military service. He explained he was in civil engineering running heavy equipment, and though he wore ear plugs as required, they did not completely prevent him from developing hearing loss. The Veteran pointed out that his hearing was fine prior to service, and reported to his non-commissioned officer a problem with his hearing, who had responded to him that this was natural with running heavy equipment. The Veteran’s DD-214 shows a specialty of civil engineer (“Pavements Maint Spec”) which has an exposure rate of highly probably in regard to hazardous noise levels. Therefore, it is recognized that the Veteran was exposed to hazardous noise during service. The Veteran’s service treatment records do not reflect any treatment or complaints for a hearing disability. Comparing the Veteran’s March 1966 medical examination report upon entry and December 1969 medical examination report upon discharge does not show a noticeable shift in hearing acuity thresholds. Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Thus, the March 1966 audiogram provided in the Veteran’s service treatment records (STRs) would ordinarily be assumed to reflect ASA standards. The December 1969 audiological testing at separation used Rudmose ISO 1964. However, converting the Veteran’s audiological results at entrance, from assumed ASA standards to ISO/ANSI, does not produce more favorable results to the Veteran. The Veteran wrote in a January 2012 statement that his hearing decreased due to constant noise exposure over time in service which causes internal damage and worsens over time. In his April 2016 Board appeal, the Veteran wrote there was a slight change in hearing from entrance until discharge and a threshold shift would not show a significant change after only three years of active duty, but that medical literature shows damage can be caused by heavy equipment and artillery noise exposure, whereas the Veteran has not had any significant noise exposure after service. In January 2012, the Veteran submitted a Budget & Policy Document for veterans and a health and wellness guide on hearing loss from moondragon.org, and in October 2013, the Veteran submitted supporting literature including an article on threshold shift in audiology/psychoacoustics, sensorineural hearing loss from dizziness-and-balance.com, and Wikipedia. An August 2012 VA examination reflects pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 35 25 LEFT 25 35 35 35 30 Speech audiometry revealed speech recognition ability of 92 percent in the left ear. At the August 2012 examination, the Veteran reported difficulty in rooms where there is competing noise. The VA audiologist opined the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The rationale included that the Veteran’s hearing deficiency is not considered a hearing loss for rating purposes, audiometric hearing at separation is within normal limits, and the hearing on separation shows no significant worsening of hearing acuity when compared to the hearing at entrance. She stated hearing loss due to noise occurs at the time of the exposure and not subsequently. However, the hearing loss opinion did not consider that the Veteran’s left ear does have a hearing loss for VA purposes. At the same time, regarding the Veteran’s tinnitus claim, the same VA audiologist also found the Veteran had a diagnosis of clinical hearing loss and that his tinnitus is at least as likely as not a symptom associated with the hearing loss. As shown by the August 2012 VA examination results, the Veteran meets the criteria for left ear hearing loss because his speech recognition scores were less than 94 percent. Additionally, as noted above, the Veteran had significant hazardous noise exposure during military service. The remaining issue is whether there is a nexus between the current left ear hearing loss and the in-service noise exposure. In a letter dated February 2021, and received March 2021, the Veteran’s private medical doctor rendered an opinion that the Veteran’s hearing loss is more likely than not due to his military service. He indicated that this was an independent medical opinion, that he was a Board-certified internal medicine physician with over 25 years of experience post-residence and his practice consists of a variety of patients including many with similar problems to the Veteran. He also wrote that he reviewed the entire medical record and this opinion was provided regarding the claim of hearing loss from operating machinery during military service. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran’s current left ear hearing loss is related to in-service noise exposure. While the April 2016 VA examiner opined that the Veteran’s left ear hearing loss was not caused by, or related to in-service noise exposure, the audiologist based the opinion largely on the fact that the Veteran’s hearing was virtually unchanged during service, with normal hearing in the left ear at separation. The opinion is flawed, as normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss, and is thus afforded little probative weight. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The February 2021 medical letter indicated that the Veteran’s hearing loss is more likely than not due to military service. Reading the opinion letter as a whole and in the context of the evidence of record, the medical doctor was indicating that the nature of the Veteran’s military service and events that occurred therein, and subsequent symptoms, made it likely that they had resulted in his hearing loss. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The evidence is thus at least evenly balanced as to whether the Veteran’s left ear hearing loss is related to his in-service noise exposure. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left ear hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 20 percent for residuals of fracture of the left patella with degenerative joint disease is remanded. The Veteran filed a claim for increase for his service-connected left patella disability in his December 2011 claim. A March 2012 examination inquiry contains, “The Veteran is claiming an increase in service-connected compensation for…residuals of fracture of the left patella with degenerative joint disease.” Following an August 2012 VA examination, in the October 2012 rating decision, the RO reduced the Veteran’s rating from 20 percent to 10 percent due to finding the condition had improved. However, they did not address the Veteran’s claim for increase or follow procedural guidelines for the reductions process. In October 2013, within one year of notification of the October 2012 rating decision, the Veteran disagreed with the reduction and wrote he was seeking 20 percent; the Veteran was already entitled to 20 percent when he filed his December 2011 increased rating claim and so it is not clear that he would intend to limit his increased rating claim to entitlement to a 20 percent evaluation. In a March 2016 rating decision, the RO restored the Veteran’s left patella rating to 20 percent, but did not discuss entitlement to a higher evaluations. As a Statement of the Case has not yet been issued with respect to this matter, a remand is required for the Agency of Original Jurisdiction (AOJ). Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), codified in 38 C.F.R. § 20.904(c). 2. Entitlement to service connection for right ear hearing loss is remanded. The Veteran has claimed he has current hearing loss due to the hazardous noise he was exposed to during military service. Only his left ear hearing loss is currently service connected. In addition, his audiological results from the most recent VA examination were from over eight years ago and he indicated that his hearing loss has increased severity. Therefore, a remand is warranted for a new VA audiological examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine any current hearing loss of the right ear and, if so, whether it is related to in-service noise exposure. 2. Send the Veteran and his representative a Statement of the Case that addresses the issue of entitlement to an evaluation in excess of 20 percent for residuals of fracture of the left patella with degenerative joint disease. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.