Citation Nr: 21041153 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-45 918 DATE: July 8, 2021 REMANDED Service connection for a right elbow condition is remanded. Service connection for right ear hearing loss is remanded. Service connection for a right ankle condition is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to May 1981. This matter originally came before the Board of Veterans' Appeals (Board) from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified at a December 2018 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter has previously been remanded by the Board for further development, most recently in February 2021. This matter is again before the Board and has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). The Board notes that during the pendency of the appeal, a March 2021 rating decision granted service connection for left ear hearing loss. As such is a full grant of the benefit sought, the issue is no longer before the Board. Service connection for a right elbow condition, service connection for right ear hearing loss, and service connection for a right ankle condition are remanded. The Veteran believes that service connection for a right elbow condition, service connection for right ear hearing loss, and service connection for a right ankle condition are warranted. See May 2021 Appellate Brief. The February 2021 Board decision remanded the above conditions for new VA examinations. Among other things, the examinations were to opine as to whether each identified condition was related to service, whether arthritis and/or right ear hearing loss manifested to a compensable degree within one year following separation from active service, and whether each identified condition was aggravated by the Veteran's service-connected tinnitus. If it was determined that right elbow bursitis pre-existed active service, the examiner was to explain why the pre-service bursitis was not an acute episode which resolved many years prior to service. See February 2021 BVA Decision. The requested examinations took place in March 2021. See March 2021 C&P Exam. The Board finds the March 2021 examinations inadequate, among other reasons, because they did not substantially comply with the Board's remand instructions. First, the March 2021 right ankle and right ear hearing loss examinations did not opine as to whether the Veteran's right ankle arthritis and the Veteran's right ear hearing loss manifested to a compensable degree within one year following separation from active service. The Board notes that although the March 2021 right ear hearing loss examination noted normal right ear hearing during a 1983 examination, the March 2021 right ear hearing loss examination also reported that the 1983 examination was flawed. Second, the March 2021 right elbow examination found that right elbow bursitis pre-existed active service yet did not explain why the pre-service bursitis was not an acute episode which resolved many years prior to service. Third, the March 2021 right elbow and right ear hearing loss examinations did not opine as to whether the Veteran's right elbow large spur or the Veteran's right ear hearing loss were aggravated by the Veteran's service-connected tinnitus. Additionally, the March 2021 right elbow and right ankle examinations are inadequate because they used the wrong standard for secondary service connection aggravation. The examinations stated that the Veteran's conditions were not permanently aggravated by the Veteran's service-connected tinnitus; however, the correct standard for secondary service connection aggravation is any increase in disability, not permanent worsening. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Finally, the March 2021 right ankle examination is inadequate because its opinion, which found no relationship between the right ankle condition and service, was solely based on the absence of evidence in the service records. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Therefore, a remand is needed for new VA examinations. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to April 2021. 2. Schedule one or more appropriate VA examinations for the Veteran's right elbow, right ear hearing loss, and right ankle disabilities. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify all right elbow, right ear hearing loss, and right ankle related disabilities existing at any point during the pendency of the appeal (i.e. since August 2013), even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is related to the Veteran's active duty service, active duty for training (ACDUTRA), and/or inactive duty for training (INACDUTRA)? If yes, for which periods? (C) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by the Veteran's service-connected disabilities? (D) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was aggravated beyond its natural progression by the Veteran's service-connected disabilities? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran's service-connected disabilities caused or aggravated the Veteran's obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (F) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated any or all of the Veteran's identified right elbow, right ear hearing loss, and/or right ankle disabilities including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. If yes, which ones? (G) Is it at least as likely as not (a 50 percent or greater probability) that any right elbow arthritis, right ear sensorineural hearing loss, and/or right ankle arthritis manifested to a compensable degree within one year following the Veteran's separation from a period of active duty service? If yes, which ones? (H) Is it at least as likely as not (a 50 percent or greater probability) that any right elbow arthritis, right ear sensorineural hearing loss, and/or right ankle arthritis was noted during service/within one year following the Veteran's separation from service, with continuity of symptomatology since? If yes, which ones? (I) Is there clear and unmistakable evidence that the Veteran's right elbow bursitis pre-existed the Veteran's active duty service? Describe the any evidence that supports a positive finding. (J) If yes, is there clear and unmistakable evidence that the Veteran's right elbow bursitis did not worsen at all during service? Is there clear and unmistakable evidence that any increase in the Veteran's right elbow bursitis during service was only due to the natural progress of the disability? Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). If the right elbow examiner finds that the Veteran's right elbow bursitis pre-existed service, the examiner should explain why the 1974 diagnosis was not an acute episode which resolved many years prior to service. The right ear hearing loss examiner should set forth facts and medical principles relied upon to arrive at an opinion, including the possibility of a delayed onset of loss of acuity due to noise exposure during service. If the examiner finds that the Veteran's current right ear hearing loss is not due to acoustic trauma during service solely because normal hearing was noted as discharge, the examiner must explain why this would preclude the current right ear hearing loss from being related to acoustic trauma during service. The lack of right ear hearing loss documented during service cannot alone serve as a basis for a negative opinion. In addition to the other relevant evidence of record, the examiner is asked to consider and address as appropriate the following information with a caution that this list is not a substitute for a review of the record: Right elbow (1) A record from 2021 showing the Veteran's service-connected disabilities. See March 2021 Rating Decision Codesheet. (2) Medical records from 2021 showing a body mass index of 49. See April 2021 CAPRI. (3) The Veteran's report that there is no evidence of a chronic right elbow disability prior to service. The problem developed during service. See January 2021 Appellate Brief. (4) A 2020 medical record showing a right elbow large spur with some fragmentation of the left olecranon. There was a history of chronic pain and trauma. The Veteran reported that his right elbow problem was related to the wear and tear of working in artillery as a cannon crewmember during active service. See January 2020 C&P Exam. (5) 2011 medical records showing complaints of arthritis in different joints from time to time and intermittent pain and swelling of the elbows from time to time. See December 2019 Medical Treatment Records. (6) The Veteran's report that during service, he picked up a 200-pound round by himself and put it on his shoulder. Then, at the same time, someone else put a 200-pound round on his other shoulder. He then walked around with the 400 pounds. This occurred from time to time. One day during service, his right elbow started hurting. He was told that it was bursitis. When he entered service, there was nothing wrong with him and there were no issues. Over time, the problem happened during service based on having rough and rugged jobs. The Veteran had been seeing a doctor ever since service and had received treatment for the elbow. The issue had been going on ever since service. Further details were provided. See Hearing Transcript. (7) The Veteran's report that the right elbow problem was diagnosed in 1983 and was related to service. See December 2015 Form 9. (8) The Veteran's report that the right elbow was injured during service. See April 2014 NOD. (9) Service records showing that the right elbow bursitis from 1974 had had no complications and no sequelae. In 1983, the Veteran reported having or having once had arthritis, rheumatism, or bursitis. The Veteran apparently sprained his wrist during service. See February 2014 STR Medical; August 2013 STR Medical Photocopy. (10) All other relevant lay and medical evidence. Right ear hearing loss (11) A record from 2021 showing the Veteran's service-connected disabilities. See March 2021 Rating Decision Codesheet. (12) Medical records from 2021 showing a body mass index of 49. See April 2021 CAPRI. (13) The Veteran's report that hearing loss started during active service from hazardous noise exposure. See January 2021 Appellate Brief. (14) A 2020 medical record showing that hearing loss had its onset in 1980. It was first noticeable in the left ear. The Veteran was a cannon crewmember during service and was around a lot of loud explosions. He drove and worked on howitzers. He sat right next to the engine, which was very loud. He also worked as a mechanic in a motor pool and was around loud noises during service. There was no significant noise exposure prior to service. There was no significant noise exposure after service. Further details were provided. See January 2020 C&P Exam. (15) A record showing that the Veteran's tinnitus was related to service. See May 2019 Rating Decision Narrative (16) The Veteran's report that some of the events related to hearing loss and tinnitus were the same. He had hearing problems and went to sick call. Service was a noisy environment. The Veteran worked as a radio telephone operator, while usually within a couple of feet from the gunner. Generators and cold carriers were also running. The Veteran did this work between 6 and 9 months out of the year. The gunner shot different sized guns. Different guns took different charges and the louder the charges, the louder the noise. Additionally, during service, the Veteran drove a Howitzer, which is similar to a tank. He spent time in a hole right next to the engine. The Veteran had tinnitus during service but did not complain about it much. During service, the Veteran wanted hearing aids because he could not hear well. The hearing problems worsened over time during service. The hearing loss problem continued ever since service. See Hearing Transcript. (17) The Veteran's report that hearing loss was related to service. Noise exposure and loudness affected his hearing. He worked with big guns. There was frequent firing and military noise exposure from those guns. See December 2015 Form 9. (18) The Veteran's report that hearing loss was caused by high frequency noise exposure from 8-inch mechanized artillery during service. See April 2014 NOD. (19) Medical literature which states that only seldom does noise cause permanent tinnitus without also causing hearing loss. See March 2014 CAPRI. (20) Service records showing June 1979 and May 1981 audiograms. The Veteran reported muffled sound during service. See February 2014 STR Medical. (21) Service records showing that the Veteran was a driver and knew a lot about howitzers. He also had hazardous noise exposure as a cannon crewman and had rifle M-16 and hand grenade awards. See February 2014 Military Personnel Record. (22) Service records showing a June 1983 audiogram and that the Veteran reported having or once having hearing loss. See August 2013 STR Medical Photocopy. (23) All other relevant lay and medical evidence. Right ankle (24) A record from 2021 showing the Veteran's service-connected disabilities. See March 2021 Rating Decision Codesheet. (25) Medical records from 2021 showing a body mass index of 49. See April 2021 CAPRI. (26) The Veteran's report that the right ankle problem started during service. See January 2021 Appellate Brief. (27) A 2020 medical record showing right ankle degenerative changes, a plantar calcaneal spur, and prominent vascular calcification. There was a history of pain and trauma. There was a diagnosis of gout. There was also a diagnosis of an ankle sprain during service. The Veteran reported that he injured the right ankle during active service when he stepped into a hole. He twisted the ankle and sought medical treatment. He continued to have pain in the right ankle ever since the injury. See January 2020 C&P Exam. (28) 2011 medical records showing that the Veteran had severe frostbite-like ankle pain. To treat it, the Veteran sat in warm tubs, rubbed the area with green alcohol, used Biofreeze, or used a deep heating rub. The Veteran also took gabapentin and colchicine. Colchicine stopped the gout pain. The Veteran had visited a private doctor since 1980 for problems, including gout and arthritis. The Veteran complained about gout and arthritis in different joints from time to time. There was a medical history of gout, and the Veteran reported intermittent swelling of the ankle from time to time. There was an assessment of gout. Additional information was provided. See December 2019 Medical Treatment Record. (29) 2008 medical records showing a medical history of gout and unspecified foot problems. See October 2019 CAPRI. (30) The Veteran's report that he hurt his ankle during active service when he stepped in a hole. He went to sick call and was told that he had a sprain. It was wrapped and he was given antibiotics. He was put on light duty. A lot of times, the Veteran did not complain about the problem, but the pain was still there. He had to keep going to get his job done. He sought treatment during service. He only has had gout in the right ankle, never in the left ankle. He had ankle problems ever since the incident during service. See Hearing Transcript. (31) The Veteran's report that after twisting the right ankle during service, it was clinically diagnosed at that time, and he was put on medical restriction for 12 days. See December 2015 Form 9. (32) Service records showing that the Veteran twisted his ankle, that there was an impression of a strain or sprain, that the Veteran could not run for days, and that the Veteran reported having or once having arthritis. See August 2013 STR Medical Photocopy. (33) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions, including but not limited to, the onset of symptomatology and continuity of symptomatology since onset and/or since service. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.