Citation Nr: 21027310 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-33 334 DATE: May 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for degenerative joint disease (DJD) of the lumbar spine is remanded Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. FINDING OF FACT The weight of the evidence is against finding that the Veteran's bilateral hearing loss is due to or is otherwise related to his service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from October 1972 to October 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal of a November 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an October 2017 travel board hearing, and a transcript of this hearing is associated with the claims file. These matters were previously before the Board in March 2018, August 2019, and February 2020. In February 2020, the Board remanded the claims of service connection for bilateral hearing loss and degenerative joint disease of the lumbar spine in order to obtain outstanding service treatment records (STRs) from prior to August 1989, as well as a lumbar spine examination. In this same decision, the Board denied service connection for a left knee disability and a left shoulder disability. The Veteran timely appealed this decision on his left knee and left shoulder disabilities to the Court of Appeals for Veterans Claims (Court). In November 2020, the Veteran's representative and the VA General Counsel filed a joint motion for partial remand (JMPR) as the parties agreed that the Board erred by failing to (a) explain to the Veteran any outstanding issues relevant and material to substantiating his claims during the October 2017 hearing; (b) ensure that the VA complied with its duty to assist under the requirements of 38 U.S.C. § 5103A by failing to obtain outstanding service treatment records and private treatment records; and (c) provide an adequate statement of reasons or bases to support the denial of service connection for a left knee and left shoulder disability. The Court granted the JMPR in November 2020, vacating that part of the February 2020 Board decision that denied entitlement to service connection for a left knee and left shoulder disability. Service Connection Service connection will be granted if the evidence in the record demonstrates that a 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) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when 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. Certain chronic diseases, including organic diseases of the nervous system such as hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service, 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). The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e. meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Entitlement to service connection for bilateral hearing loss is denied. In its February 2020 remand, the Board instructed the RO to obtain the Veteran's STRs prior to August 1989. The RO submitted a request to the Personnel Information Exchange System (PIES) for these outstanding records. However, all of the Veteran's STRs prior to August 1989, except for his October 1972 entrance examination, were unable to be located by PIES. The RO informed the Veteran in a September 2020 letter. The Board finds the RO's attempts to obtain the Veteran's outstanding STRs to substantially comply with its remand instructions. The Veteran's STRs note he had left ear otitis media during an August 1989 audiogram. However, every other audiogram, to include the Veteran's entrance and separation examinations, reflect hearing within normal limits. His VA treatment records first note complaints of hearing loss in December 2010. The Veteran was afforded VA examinations in April 2012 and January 2020. In the April 2012 examination, the examiner diagnosed the Veteran with hearing loss for VA purposes. The examiner noted the August 1989 audiology examination that diagnosed otitis media in the Veteran's left ear but noted that all audiometric testing before and after was normal. The examiner opined the Veteran's hearing loss was less likely than not related to service because there were no threshold shifts noted in service and the Veteran's hearing was within normal limits upon separation from service. In the January 2020 examination, the examiner noted the Veteran entered and separated from service with normal hearing. The examiner opined the Veteran's hearing loss was less likely than not related to his service because although his military occupation specialty had a high probability of hazardous noise exposure, the Veteran's entrance and separation examinations showed normal hearing, and there were no threshold shifts during service. Additionally, the Veteran reported working for the railroad as well as a bus driver after service and is currently an aircraft mechanic. All of these jobs have hazardous noise exposure, and the examiner's negative nexus opinion was based on these factors. In a January 2012 written statement, the Veteran explained that throughout his career, he was exposed to hazardous noise without hearing protection. This included using small arms and other military equipment during basic training, exposure to heavy equipment, weapons, and demolition noise during combat engineer training, working with heavy equipment during a deployment to Germany, performing aircraft maintenance and structural repair, and during his yearly weapons qualifications. He reported having difficulty hearing when there is any background noise, as well as having to ask others to repeat words and phrases when speaking to them. He also reported difficulty locating sounds and experiencing bilateral tinnitus. The Veteran's hearing loss was not shown to be chronic during service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The earliest complaint of hearing loss noted in the Veteran's VA treatment records is December 2010, almost 20 years after separation from service. Both the April 2012 and January 2020 examiners noted the Veteran had normal hearing at entry and separation from service, with no threshold shifts during service. Additionally, while the Veteran described his hazardous noise exposure and some of his current symptoms in his January 2012 statement, he did not indicate when his hearing loss began or indicate his symptoms had been ongoing since service. Thus, entitlement to service connection on a presumptive basis is not warranted here. Service connection for hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's hearing loss and an in-service injury, event, or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The January 2020 examiner noted the Veteran worked for the railroad and as a bus driver after separation from service and currently works in aircraft maintenance, stating that all these jobs have a high probability of hazardous noise exposure. Additionally, the examiner noted there were no threshold shifts throughout the Veteran's multiple in-service audiograms, and his hearing was within normal limits upon entry and separation from service. The Veteran also first complained of hearing loss in December 2010, almost 20 years after service. He has not stated that the symptoms began in service. Although the Veteran has asserted that he has hearing loss that is related to service, as a lay person, he is not competent to make this determination because he lacks the requisite medical training and expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377n.4 (Fed. Cir. 2007). Accordingly, after reviewing the pertinent evidence of record, the Board finds the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claim for entitlement to service connection for hearing loss must be denied. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for degenerative joint disease (DJD) of the lumbar spine is remanded. In its February 2020 remand, the Board instructed the RO to obtain a new examination, stating the VA examiner needed to address whether it is at least as likely as not that the Veteran's DJD of the lumbar spine is proximately due to or aggravated by his service-connected left ankle disability. The RO obtained a new lumbar spine examination in February 2021. However, although the examiner addressed direct service connection as well as whether the Veteran's lumbar spine DJD was proximately due to his service-connected left ankle disability, the examiner failed to address whether the Veteran's left ankle disability aggravated his lumbar spine DJD. A remand by the Board confers on the claimant a legal right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. Therefore, because the examiner failed to follow the Board's instructions, the February 2021 examination is inadequate, and the matter must be remanded to obtain an addendum opinion. 2. Entitlement to service connection for a left knee condition is remanded. 3. Entitlement to service connection for a left shoulder condition is remanded. The Board finds that additional development is required prior to appellate review of the Veteran's claims for service connection for a left knee and left shoulder disability. First, as noted above, service connection will be granted if the evidence in the record demonstrates that a 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) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). On remand, the Veteran must be notified of the elements necessary to establish service connection and afforded the opportunity to submit evidence or argument concerning any of these elements. Then, the agency of original jurisdiction (AOJ) must make reasonable attempts to obtain any outstanding VA and private treatment records concerning treatment of the Veteran's left knee and left shoulder. Specifically, the AOJ must make all reasonable attempts to obtain the fee-basis private MRI of the Veteran's left shoulder conducted in 2011. Afterwards, the AOJ must obtain new VA examinations for the Veteran's left knee and left shoulder which address the Veteran's lay statementsspecifically concerning his contention that his current left knee disorder is related to an in-service fracture of the left fibulaas well as any newly obtained treatment records for both conditions. With respect to the Court's instruction to obtain the Veteran's outstanding STRs, the Board finds that the AOJ has previously complied with this order in the process of adjudicating the Veteran's bilateral hearing loss and degenerative joint disease of the lumbar spine claims. The AOJ submitted multiple requests to PIES for all outstanding STRs and received a response indicating that no STRs prior to August 1989 could be located. As such, the AOJ has already complied with this portion of the JPMR to the best of its ability and does not need to continue attempting to locate the Veteran's STRs. However, the AOJ should contact the Veteran and request any copies of STRs in his possession. Accordingly, these matters are REMANDED for the following action: 1. Send the Veteran a duty to assist letter outlining what is necessary to show entitlement to service connection for left knee, left shoulder, and lumbar spine disorders. The letter should include examples of evidence that may be submitted and must inform him of any outstanding issues relevant and material to substantiating his claims for a left knee disability, left shoulder disability, and degenerative joint disease of the lumbar spine, taking care to explain how the Veteran can substantiate his claims. Afford the Veteran was a reasonable time to respond. 2. With any required assistance of the Veteran, obtain any outstanding VA and/or private medical records, and associate these records with the claims file. The AOJ must specifically make all reasonable efforts to obtain a fee-basis private MRI of the left shoulder conducted in 2011. 3. Contact the Veteran and request any copies of in-service treatment records that are in the Veteran's possession, specifically any service treatment records prior to August 1989. 4. Following completion of the above, refer the claims file to a qualified medical professional for opinions addressing the etiology of the claimed left shoulder, left knee, and degenerative joint disease of the lumbar spine. The need for further examination or a telehealth interview is left to the discretion of the examiner. The examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability is due to or otherwise related to the Veteran's active service, to specifically include an in-service fracture of the left fibula. (b.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left shoulder disability is due to or otherwise related to his active service. (c.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's degenerative joint disorder of the lumbar spine is aggravated by his service-connected left ankle disability. The examiner must address the Veteran's lay statements concerning any symptomatology during and after service. The entire claims file must be made available to the examiner for his or her review in providing these opinions. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.