Citation Nr: 21041957 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-45 301 DATE: July 10, 2021 REMANDED Service connection for bilateral sensorineural hearing loss (BHL) is remanded. Service connection for bilateral leg disability, to include as secondary to service-connected disabilities, is remanded. Service connection for left ankle disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active duty for training in the United States Army for September 1990 to March 1991. The Veteran also had additional Reserve service. These matters come before the Board of Veterans' Appeals (Board) from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the RO granted service connection for right and left hip strain, right and left knee strain, and right ankle strain and these disabilities are no longer on appeal. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran's claims file contains a copy of the hearing transcript. Regrettably, 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 Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Discussion The Veteran asserts that the above-articulated disabilities were incurred in, aggravated by, or otherwise attributable to service. BHL At the Board hearing, the Veteran testified that her bilateral hearing acuity had worsened since the time of her July 2014 VA audiological examination. At the hearing, the Veteran testified that she experienced extensive noise in service, performing her duties as material control (and accounting) specialist. In pertinent part, the Veteran indicated that during service, she was in proximity (as an ammunition "controller") to loud military weaponry field exercises. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Upon VA audiological examination in 2014, a VA audiologist reported that the Veteran's bilateral hearing was normal. The audiologist opined that the Veteran's bilateral hearing was well within normal limits, although slightly less sensitive bilaterally from thresholds indicated in 1983 and 1993. Even though this audiologist provided a negative nexus opinion as there was no current BHL, this evidence of threshold shift suggests that the Veteran's claimed "worsened" bilateral hearing, 7 years after the 2014 audiological examination, "may be" associated with an established event or injury in service. As such, the Board finds that an additional audiological examination is in order. Bilateral leg disability Left ankle disability The Veteran underwent a VA ankle conditions examination in August 2016 which focused on a right ankle. While the clinician made findings as to the left ankle, the report provides no substantive evidence as to any current left ankle disability. At the Board hearing, the Veteran provided testimony about many symptoms constitutive of a bilateral leg disability and a left ankle disability. The Veteran contends that these disabilities, like her service-connected right hip strain, left hip strain, right knee strain, right knee strain, and right ankle strain are intertwined and related to fall during in-service physical training. The Veteran's private clinicians have provided treatment following a fall at civilian work in May 2011 and clinical observations of the Veteran's symptoms; however, the evidence of record remains unclear as to the nature, if any, of the Veteran's current bilateral leg disability and current left ankle disability. The Veteran testified about symptoms and medication that could involve the joints, muscles, and/or nerves. While private medical evidence does disclose that the Veteran sustained bilateral leg and left ankle injuries in 2011, this private medical evidence provides no insight into whether the Veteran incurred the specific disabilities during Reserve training or aggravated any preexistent bilateral leg disability and/or preexistent left ankle disability. Moreover, the evidence of record is bereft of any guidance as to whether there is either a causative or aggravation nexus between these contended disabilities and the Veteran's service-connected disabilities. The Veteran is competent to report her discernable symptoms and the Board finds her accounts to be both plausible and credible. 38 C.F.R. § 3.159(a)(2); Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). As such, the Board requires evidentiary development to ensure a fully informed evaluation of the Veteran's bilateral leg disability claim and left ankle disability claim. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) The matters are REMANDED for the following actions: 1. Ascertain whether there are outstanding VA treatment records. If there are additional records, associate them with the Veteran's claims file 2. Contact the Veteran and her representative and request that they provide or identify and authorize the recovery of any additional private records of treatment for the claimed bilateral leg and left ankle disabilities. If obtained, associate these treatment records with the claims file. The Regional Office (RO) must make two attempts to obtain these relevant records unless the first attempt demonstrates the further attempts would be futile. Should the RO determine that more than one attempt to obtain these relevant records would be futile, the RO must make a formal finding delineating the steps that have been taken and explaining, with specificity, why any further attempts to obtain these relevant records would be futile. Should these records not be obtained, the RO must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 3. Arrange for a VA BHL examination, a VA bilateral leg examination, and a VA left ankle examination with appropriate clinicians. The clinician(s) must review the entirety of the claims file and indicate such review in the body of each respective opinion or examination report. The clinician(s) should perform all necessary evaluation protocols. For the BHL examination, the audiologist must perform all necessary audiometric testing and must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Upon completion of the examination, the audiologist should offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's BHL, if so found for VA compensation purposes, was incurred in, aggravated by, or otherwise attributable to, any incidence of the Veteran's active duty or active duty for training? 4. For the bilateral leg and left ankle examinations, the clinician or clinicians should perform all necessary testing to determine the assessment, if any, of the Veteran's contended bilateral leg disability and the Veteran's left ankle disability. The clinician or clinicians must consider the Veteran's hearing testimony, in which she mentions symptoms of orthopedic, muscular, and/or neurological nature. Upon completion of each examination, the clinician or clinician should respond to the following inquiries: a. Whether it is at least as likely as not that the Veteran's bilateral leg disability, if any, was incurred in, aggravated by, or otherwise attributable to, any incidence of the Veteran's active duty or active duty for training? b. Whether it is at least as likely as not that the Veteran's bilateral leg disability, if any, was proximately caused by, any other (or any combination thereof) of the Veteran's service-connected disabilities? c. Whether it is at least as likely as not that the Veteran left ankle disability, if any, was incurred in, aggravated by, or otherwise attributable to, any incidence of the Veteran's active duty or active duty for training? AND d. Whether it is at least as likely as not that the Veteran's left ankle disability, if any, was proximately caused by, any other (or any combination thereof) of the Veteran's service-connected disabilities? All clinicians should note that the Veteran and other lay informants are competent to report discerned (Veteran) or observed/heard (lay informants) symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If a clinician rejects the Veteran's and/or lay informants' reports, she/he must provide an explanation for such rejection. For all examinations, clinicians should provide clear rationales for all conclusions reached. Explanations are necessary which consider the record and pertinent audiological/medical principles. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.