Citation Nr: 21027228 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-29 410 DATE: May 5, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to an initial increased rating for low back strain, evaluated as 10 percent disabling prior to September 15, 2016, and 20 percent disabling thereafter, is remanded. Entitlement to an initial increased rating for right knee patellar dislocation with chronic strain, evaluated as noncompensably disabling prior to September 15, 2016, and 10 percent disabling thereafter, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of right knee flexion is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of left ear hearing loss for Department of Veterans Affairs (VA) purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2008 to November 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2013 and January 2017 rating decisions of the VA agency of original jurisdiction (AOJ). These matters were previously before the Board in April 2020. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. The AOJ provided appropriate notice in August 2012. The AOJ associated the Veteran's service records and VA treatment records with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to service connection for left ear hearing loss The Veteran contends that service connection is warranted for left ear hearing loss due to in-service noise exposure. Service connection for right ear hearing loss was granted in a November 2020 rating decision. 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). 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. Under 38 C.F.R. § 3.385, impaired hearing is considered a disability in three circumstances: (1) where the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) where the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) where the Maryland CNC Test speech recognition scores are less than 94 percent. In an April 2013 authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 10 10 15 5 5 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The requirements under 38 C.F.R. § 3.385 are not met. At a more recent authorized audiological evaluation, in November 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 30 15 35 25 20 Speech audiometry revealed speech recognition ability of 98 percent in the left ear. Once again, the left ear testing results failed to meet any of the three requirements to classify the Veteran's hearing impairment as a disability for VA compensation purposes. Thus, relying on the April 2013 and November 2020 VA examinations, the Board concludes that the Veteran does not have a current diagnosis of left ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. REASONS FOR REMAND Evaluation of low back strain Remand is necessary to ask the Veteran to report his private treatment providers and submit a release for their records. As noted in the April 2020 remand, a VA medical center (VAMC) provider placed a consult in November 2018 for community care physical therapy for the Veteran's back. Although VA must consider relevant community care records in its decision, VA cannot obtain such records with a release from the Veteran. Thus, the AOJ must again request that the Veteran identify his private treatment providers and sign a release for VA to obtain their records. Moreover, remand is necessary to obtain an additional VA examination. The most recent VA examination, dated September 2016, determined that pain limited functional ability with repeated use over time and during flare ups. The VA examination failed to describe these limitations in terms of range of motion, however, citing "speculation since i [sic] am not present with vet." An additional VA examination that attempts to provide these estimates is required. Sharp v. Shulkin, 29 Vet. App. 26, 34 36 (2017). Evaluation of right knee disabilities Remand is necessary to obtain another VA examination for the right knee. The most recent VA examination, dated January 2020, noted the Veteran's reports of flare ups consisting of "intense knee pain 3 4 times a week" from which he gets "no relief until he can take weight off and rest." The VA examination later indicated that pain did not significantly limit functional ability with flare up, contradicting the Veteran's reported pain with flare ups. A new VA examination is required to address this discrepancy. The matters are REMANDED for the following action: 1. Contact the Veteran and request a release for private care providers, including those seen on referral from VA, who have treated him for any claimed conditions. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. The AOJ is reminded that these records are considered Federal, and efforts to secure such must continue until obtained, or until they can be certified as unavailable. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back strain. 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. In so doing, the examiner must 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare ups based on the other evidence of record and the Veteran's statements. 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), an inadequacy in the record (additional facts are required), or a deficit in the examiner's knowledge or training. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. 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. In so doing, the examiner must 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare ups based on the other evidence of record and the Veteran's statements. 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), an inadequacy in the record (additional facts are required), or a deficit in the examiner's knowledge or training 4. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue a supplemental statement of the case, and return the case to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.