Citation Nr: 21030679 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-35 309 DATE: May 19, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to an evaluation in excess of 10 percent disabling for service-connected residuals of a gunshot wound right leg with neuroma affecting the superficial peroneal nerve and scar is remanded. Entitlement to service connection for a left knee condition, to include as secondary to service-connected residuals of a gunshot wound to the right leg is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from September 1967 to May 1969. For exemplary service, he was awarded the Combat Infantry Badge, National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and a Purple Heart. Regrettably, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). 1. Entitlement to service connection for bilateral hearing loss and tinnitus is remanded. Although the further delay entailed by remand is regrettable, current adjudication of the Veteran's claims would be premature. Undertaking additional development prior to a Board decision is the only way to ensure compliance with the duty to assist, as required. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus. Service treatment records were silent for any physical abnormalities at enlistment in September 1967. In a report of medical history, the Veteran denied any problems with hearing loss, tinnitus, a leg, bone, or joint abnormality. At separation in May 1969, no complaints of hearing loss, ringing in the ears, or a left leg condition were reported. It appears that a whisper test was likely conducted at separation. According to military personnel records, the Veteran's official military occupation was a light weapons infantryman. While stationed in Vietnam, he suffered a gunshot wound to the right ankle and underwent multiple surgeries. Considering the above, hazardous noise exposure is conceded. On the authorized audiological evaluation in May 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 60 90 95 LEFT 15 30 60 80 90 Pure tone threshold averages were 70 dB for the right ear and 66 dB for the left ear. Speech audiometry revealed speech recognition ability of 52 percent in the right ear and of 44 percent in the left ear. Based upon the audiological findings, the examiner concluded that the Veteran suffers from sensorineural hearing loss in both ears. While the opinion acknowledged the Veteran's exposure to acoustic trauma in service, the Veteran's hearing loss was deemed unrelated to active service. In support of the stated conclusion, the examiner converted the Veteran's audiological findings at enlistment and separation from ASA standards to ISO-ANSI standards. Based upon that conversion, the examiner indicated that no threshold shifts were observed between enlistment and separation. Moreover, the Institute of Medicine (IOM) (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel further suggested that based upon their current understanding of auditory physiology, a prolonged delay in onset of noise-induced hearing loss is "unlikely." Therefore, the examiner opined that it is less likely as not that the Veteran's current hearing loss and related tinnitus are causally related to in-service noise exposure. On review of the record, the Board finds that May 2016 VA examination inadequate. Specifically, the examiner failed to fully consider the Veteran's lay assertions regarding the onset of his hearing loss and tinnitus. As hazardous noise exposure has been conceded, a remand is required to fully consider the Veteran's lay contentions. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to an evaluation in excess of 10 percent disabling for service-connected residuals of a gunshot wound right leg with neuroma affecting the superficial peroneal nerve and scar is remanded. The Veteran contends that the current severity of his service-connected residuals of a gunshot wound right leg with neuroma affecting the superficial peroneal nerve and scar warrants a higher evaluation. Review of the record indicated that the Veteran has continued to seek treatment for his service-connected right leg disability. In September 2011, X-ray films revealed nerve damage due to your right leg dur to a gunshot wound. Some arthritic changes in lumbar spine, mild degree. In August 2011, an EMG study show right lower extremity pain, numbness, and tingling that radiates into the toes. The diagnostic impression listed right peroneal neuropathy in the right lower extremity with absent superficial response to stimulation. In May 2016, the Veteran underwent a VA examination for muscle injuries. The examiner noted a current diagnosis of gunshot wound with right lower extremity residual peroneal nerve neuroma. During the clinical interview, the examiner noted that the Veteran has penetrating muscle injury due to a gunshot or shell fragment wound. In service, he suffered a gunshot wound to the right ankle while stationed in Vietnam. A formal diagnosis was listed as a fracture to the right lower extremity distal fibula. After two surgeries, he was left with a large posterior scar. An EMG study, dated August 2011, revealed absent superficial peroneal response to stimulus. According to the Veteran, he continues to endure pain and tingling in the distal right lower extremity with ambulation. A limp with ambulation has persisted since the wound healed. The Veteran's right lower extremity symptoms were deemed causally related to his peroneal nerve neuroma and not any muscular problems. A functional impact was described as an inability to walk more than 1/4 mile due to his right ankle condition. The Veteran also reported walking with a limp. The same month, a VA examination of the bilateral knees was conducted. No current diagnosis of a left knee or lower leg condition was indicated. Further, the examiner failed to evaluate the right knee/lower leg. In finding that no left knee/lower leg diagnosis was warranted, the examiner merely suggested that the Veteran denied any left leg symptoms. No range of motion or diagnostic testing was conducted. Considering the above, the Board finds the May 2016 VA examination inadequate. Notably, the VA examiner failed to conduct diagnostic testing of any kind and instead, relied upon the Veteran's lay assertion that no pain on the date of examination. In error, the opinion also suggested that an increased evaluation for the Veteran's right leg condition had not been requested. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See 38 U.S.C. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to service connection for a left knee condition, to include as secondary to service-connected residuals of a gunshot wound to the right leg is remanded. Regarding the Veteran's claim of entitlement to service connection for a left knee condition, to include as secondary to service-connected residuals of a gunshot wound to the right leg, the Board's consideration of this issue depends on the Board's determination on his claim for an increased rating for his service-connected residuals of a gunshot wound to the right leg. Because that issue is being remanded, these claims are inextricably intertwined. Accordingly, adjudication of this claim will be deferred until further development of the inextricably intertwined issue is completed. Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (noting that remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran's bilateral hearing loss and tinnitus was incurred in, caused by or is otherwise related to acoustic trauma during active service. The examiner's attention is called to the Veteran's lay assertions regarding the onset of his symptoms. As a part of the examination and its associated opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). 3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected residuals of a gunshot wound right leg with neuroma affecting the superficial peroneal nerve and scar. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner must also discuss the functional effects of the Veteran's service-connected right leg condition, and any related residual conditions. As a part of the examination and/or opinion, the examiner must consider all medical evidence to include the Veteran's lay statements. Any opinion offered must be accompanied by a complete rationale, to include consideration of all medical evidence and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). 4. Thereafter, re-adjudicate the Veteran's claims, to include his inextricably intertwined claim of entitlement to service connection for a left knee condition, to include as secondary to service-connected residuals of a gunshot wound to the right leg. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.