Citation Nr: 21025651 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-41 532 DATE: April 28, 2021 ORDER Service connection for left ear sensorineural hearing loss is granted. Service connection for a low back disability is granted. REMANDED Entitlement to a compensable rating for an acquired limb length discrepancy of the right leg, formerly rated as the residuals of fracture of the right tibia and fibula, is remanded. Entitlement to service connection for right ear sensorineural hearing loss is remanded. Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his left ear sensorineural hearing loss is related to in-service noise exposure. 2. Resolving reasonable doubt in the Veteran’s favor, his low back disability is aggravated beyond its natural progression by his service-connected right leg limb length discrepancy and right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a low back disability as secondary to a right leg length discrepancy and right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to June 1975 and September 1985 to January 1986. A Board hearing was held in July 2019. A transcript of the hearing could not be produced due to audio malfunctions. The Veteran was informed of this in an April 2020 letter and, in an April 2020 response, declined the opportunity to testify at an additional Board hearing. The Board will therefore proceed with adjudication of the appeal based on the evidence of record. Service Connection 1. Left Ear Hearing Loss The Veteran contends that his current hearing loss is related to his active duty service. The Board concludes that the Veteran has a current disability that is related to his active duty service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A December 2015 VA examiner determined the Veteran had left ear sensorineural hearing loss, but opined the disability was less likely than not related to his service. The examiner explained the Veteran had normal hearing at separation and had no significant changes in his hearing thresholds greater than normal measurement variability. On the other hand, a February 2017 VA examiner opined the Veteran’s left ear hearing loss was at least as likely as not related to military noise exposure, explaining that while the hearing in the Veteran’s left ear was normal at the time of his separation from service, there had been significant, permanent threshold shifts during service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current left ear sensorineural hearing loss is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for left ear sensorineural hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Low Back Disability The Veteran contends his low back disability was either caused or aggravated by his service-connected right lower extremity disabilities, which include a right knee disability and a right leg length discrepancy. The Veteran has provided three separate private medical opinions from Dr. J.A., dated in April 2016, August 2016, and September 2016. Dr. J.A. separately diagnosed low back degenerative disc disease, low back pain, and mechanical back pain syndrome. In the April 2016 opinion, Dr. J.A. found that while, in all medical probably, the Veteran’s low back degenerative changes were due in part to the normal aging process and obesity, the Veteran’s service-connected right leg length discrepancy and right knee osteoarthritis exacerbated or aggravated his low back disability. In the August 2016 opinion, Dr. J.A. explained that the Veteran’s leg length discrepancy caused a disruptive gait and posture and most likely contributed to the Veteran’s low back disability. Finally, in the September 2016 Disability Benefits Questionnaire (DBQ), Dr. J.A. opined the Veteran developed mechanical low back pain secondary to altered gait mechanics and limb length discrepancy. Contrary to Dr. J.A.’s opinions, VA examiners in May 2016 and April 2017 opined that the Veteran’s low back disability was less likely than not related to his service-connected disabilities. The May 2016 VA examiner opined there was no medical pathophysiologic relationship between a right tibia/fibula fracture and a back disability; however, the examiner did not address the resulting leg length discrepancy, the Veteran’s right knee disability, or give an opinion as to whether or not either condition aggravated the Veteran’s low back disability. The April 2017 VA examiner, on the other hand, addressed both the Veteran’s leg length discrepancy and his right knee disability, opining it was less likely than not that either caused the Veteran’s low back disability, explaining that the most likely cause of the his low back pain was morbid obesity. But the examiner did not address whether the Veteran’s other service-connected disabilities aggravated his low back disability. Because neither addressed the possibility of aggravation, the opinions of the VA examiners are inadequate. The Board therefore finds the several opinions of Dr. J.A. to be the most probative evidence of record. Moreover, Dr. J.A.’s opinions do not conflict with the opinions of the VA examiners. Like the VA examiners, Dr. J.A. opined that the most likely cause of the Veteran’s low back disability was aging and obesity, but further found that the disabilities associated with the Veteran’s right leg at least as likely as not aggravated his low back disability beyond its normal progression. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current low back disability is aggravated beyond its natural progression by his service-connected right knee and lower limb length discrepancy. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.” REASONS FOR REMAND 1. Increased Rating for Limb Length Discrepancy and Residuals of a Fracture of the Tibia and Fibula First, the Veteran has asserted that the residuals of the fracture of his right tibia and fibula – which were initially rated as such but later rated as a limb length discrepancy – caused a dysfunction of the ankle. See January 2021 Veteran Statement. No VA examiner has examined the Veteran’s right ankle to determine whether there is any ankle dysfunction. Next, at the time of the most recent December 2018 VA examination, the Veteran was still in recovery from a total right knee arthroplasty and could not get on the examination table or straighten his right leg so the examiner could determine the extent of his limb length discrepancy. The examination was therefore inadequate. 2. Service Connection for a Left Hip Disability The Veteran has provided three private medical opinions in support of his claim. See April 2016 Private Treatment Record; August 2016 Private Treatment Record; September 2016 DBQ. The April 2016 opinion is speculative, only suggesting the Veteran’s left hip disability could be related to his right lower extremity disabilities. The August and September 2016 opinions also suggest the Veteran’s left hip pain may be related to his right lower extremity disabilities but provide no explanation to support the opinions. The VA examinations did not address the Veteran’s assertion his right lower extremity disabilities aggravated his left hip disability beyond its natural progression and are therefore inadequate. 3. Service Connection for Right Ear Hearing Loss The February 2017 VA examiner opined that the Veteran’s right ear hearing loss occurred after service, explaining that the Institute of Medicine (IOM) concluded, based on current knowledge of cochlear physiology, there was no scientific basis for the existence of delayed onset hearing loss. The Veteran has provided several medical studies he asserts support his contention that his in-service noise exposure caused his right ear hearing loss, despite having normal hearing at the time of separation. See March 2021 Appellate Brief. A remand is necessary to address the additional medical evidence. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right lower extremity disability, including residuals of a tibia/fibula fracture and limb length discrepancy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must also examine the Veteran’s right ankle and determine whether the residuals of this tibia/fibula fracture have resulted in any ankle dysfunction. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing and must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain an additional opinion from an appropriate clinician regarding the Veteran’s claimed left hip disability. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. After a review of the claims file, and examination of the Veteran if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following inquiry with an explicit opinion: Is the Veteran’s left hip disability at least as likely as not proximately due to his right knee disability or any residuals of his right tibia/fibula fracture? Is the Veteran’s left hip disability at least as likely as not aggravated by his right knee disability or any residuals of his right tibia/fibula fracture? The examiner must consider the April 2016, August 2016, and September 2016 opinions of Dr. J.A. 3. Obtain an additional opinion from an appropriate clinician regarding the Veteran’s claimed right ear hearing loss. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the claims file, and examination of the Veteran if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following inquiry with an explicit opinion: Is the Veteran’s right ear sensorineural hearing loss at least as likely as not related to service, including in-service noise exposure? The examiner must specifically address the medical articles cited by the Veteran’s representative in the March 2021 Appellate Brief. 4. Readjudicate. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine, 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.