Citation Nr: 21030028 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-10 921 DATE: May 17, 2021 REMANDED Service connection for bilateral hearing loss is remanded. Service connection for a right knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1961 to August 1963. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas. These claims were previously before the Board in December 2019 where the Board denied service connection for bilateral hearing loss, a left knee condition, and a right knee condition. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Affairs (CAVC or "the Court"). In January 2021, the Court granted a January 2021 Joint Motion for Partial Remand (JMPR) vacating the Board's denial of service connection for bilateral hearing loss and a right knee condition. The JMPR did not challenge the denial of service connection for a left knee disability. Accordingly, the Court dismissed the appeal as to the left knee disability. Thus, the claims of service connection for bilateral hearing loss and a right knee disability have returned to the Board for further consideration consistent with the January 2021 JMPR. 1. Service connection for bilateral hearing loss is remanded. The Board denied service connection for bilateral hearing loss largely based on an October 2015 VA examination. The examiner, at that time, found the Veteran's bilateral hearing loss was less likely than not related to service. As agreed in the January 2021 JMPR, the October 2015 VA examination was not adequate because it opined that the Veteran's bilateral hearing loss was less likely than not related to service based, in-part, on the reasoning that the Veteran's hearing was normal at separation. Upon review, however, the Veteran's entrance examination only contained a whisper test and his separation examination lacked an audiogram reading at 3000 Hz, neither of these factors were reconciled by the VA examiner when determining that the Veteran's hearing was "normal" at separation or without significant change on separation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Further, in Hensley v. Brown, 5 Vet. App. 155, 164 (1993), the Court determined that a Veteran "may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service." The Court found that service connection may not be denied based solely on normal audiometric results upon separation from service. Id. at 160. In this case, the October 2015 VA examiner's opinion relied upon the Veteran's normal audiogram results at the time of separation. The examiner, however, did not adequately address whether the Veteran's contended in-service noise exposure is related to his current hearing loss disability. Accordingly, remand is necessary to afford the Veteran another VA examination. 2. Service connection for a right knee condition is remanded. The Board denied service connection for a right knee condition largely based on an October 2017 VA examination. The examiner, at that time, found the Veteran's right knee condition was less likely than not related to service. As agreed in the January 2021 JMPR, the Board finds the October 2017 VA examination was not adequate for the purpose of resolving the Veteran's service connection claim. The October 2017 VA examiner opined that the Veteran's right knee condition was less likely than not related to service based, in-part, on the reasoning that there was no evidence to suggest the right knee was affected by service. However, the Veteran offered lay statements of symptoms during the examination that this right knee pain has waxed and waned since 1965 with swelling onset "probably when I came out of the military." Thus, remand is necessary for another opinion considering the Veteran's lay statements regarding symptom onset and continuity. See Miller v. Wilkie, 32 Vet. App. 249 (2020). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination before an appropriate examiner to determine whether the Veteran's bilateral hearing loss is related to service, to include previously conceded noise exposure associated with the Veteran's Military Occupational Specialty of Field Artillery Basic. The entire claims file and this remand should be provided to the examiner for review. The examiner should render an opinion, including rationale, addressing whether the Veteran's bilateral hearing loss is at least as likely as not (50 percent or greater probability) caused by or incurred during service, to include the Veteran's Military Occupational Specialty of Field Artillery Basic. The examiner is directed to address and consider the Veteran's lay statements of noise exposure including serving as an ammunition truck driver and firing weapons without ear protection. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. The Board notes that the Veteran's service treatment records show only a whisper test conducted on induction and a lack of testing at 3000 Hertz on separation. The examiner should address the relevancy of these limited tests in any opinion rendered. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Schedule the Veteran for an examination before an appropriate examiner to determine whether the Veteran's right knee condition is related to service. The entire claims file and this remand should be provided to the examiner for review. The examiner should render an opinion, including rationale, addressing whether the Veteran's right knee condition is at least as likely as not (50 percent or greater probability) caused by or incurred during service, to include consideration of continuity of symptomatology. In so opining, the examiner is directed to address and consider the Veteran's lay statements of symptoms including swelling "probably when I came out of the military" and pain waxing and waning since at least 1965. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.