Citation Nr: 21042147 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-01 421 DATE: July 12, 2021 REMANDED Entitlement to service connection for bilateral ear hearing loss is remanded. Entitlement to service connection for a right hip condition, to include secondary to a service-connected disability is remanded. Entitlement to service connection for a left knee condition, to include secondary to a service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1989 to August 1992. The claims were most recently before the Board in November 2020. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for bilateral ear hearing loss is remanded. The Board is unable to make an informed decision on the issue of service connection for bilateral hearing loss because the December 2020 VA audiological examination is inadequate. The December 2020 examiner appears to impermissibly rely on the Veteran having normal hearing at separation in forming the opinion, despite acknowledging that hazardous noise exposure during service was conceded. Furthermore, a subsequent May 2021VA audiological examination for tinnitus, contradicted the December 2020 opinion by noting, "It is as likely as not that this veteran's tinnitus is a result from military related noise exposure to ship maintenance noise and aircraft noise while in service." This opinion indicates that the Veteran's hazardous noise exposure during service did cause hearing impairment. On remand, the Veteran should be given a new VA audiological examination to obtain an adequate opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board also notes that several attempts were made to notify the Veteran of his scheduled audiological examinations which he subsequently failed to report. The Board also notes that the attempts to notify the Veteran were not successful. On remand, AOJ should work with the Veteran's representative to ensure the notices are sent to the proper points of contact to ensure that the Veteran is properly notified. 2. Entitlement to service connection for a right hip condition, to include secondary to a service-connected disability is remanded. 3. Entitlement to service connection for a left knee condition, to include secondary to a service-connected disability is remanded. The Board is unable to make an informed decision on the issue of service connection for right hip and left knee conditions because the February 2021 VA examinations are inadequate. The February 2021 negative opinion was based on the premise that arthritis in one joint cannot cause arthritis in another joint. However, the opinion does not discuss other etiological possibilities of causing a hip and knee disability. In contrast, a March 2021 VA examination that provided positive secondary service connection opinions for the Veteran's right knee and right ankle by stating, It is well documented that significant pain unilaterally causes automatic compensation for that pain when the patient alters their gate to prevent worsening pain on the original painful side, while in turn over-compensating to the point of also causing pain on the contra-lateral side. This altered gate causes a misalignment of the skeletal frame and in order to walk upright as humans do, the patient will unknowingly cause further misalignment resulting in additional or worsening pain. In light of the March 2021 VA medical opinion pertaining to etiology of secondary service connection, a new VA medical opinion is necessary to properly address the Veteran's claims. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA examiner for the Veteran's service connection claim for bilateral hearing loss. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Copies of all pertinent records must be made available to the examiner. If an examination is necessary, the AOJ must work with the Veteran's representative to ensure that the Veteran's contact information is correct. A copy of the notice of any scheduled examination must be included in the record. The Veteran is informed that failure to report for a scheduled VA examination, without good cause shown, could be the basis for his claim to be decided without the benefit of a VA examination. 38 C.F.R. § 3.655. The examiner must answer the following questions: Is it at least as likely as not (50 percent probability) that any currently diagnosed bilateral hearing loss was incurred in or is otherwise related to service? The examiner is asked to review and discuss as necessary the March 2021 opinions for tinnitus. If the examiner disagrees with the rational of the March 2021 opinion, it is necessary to explain in detail with medical references as to why the March 2021 opinion is incorrect. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 2. Obtain an addendum opinion from an appropriate VA examiner for the Veteran's service connection claims, right hip and left knee. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Copies of all pertinent records must be made available to the examiner. If an examination is necessary, the AOJ must work with the Veteran's representative to ensure that the Veteran's contact information is correct. A copy of the notice of any scheduled examination must be included in the record. The Veteran is informed that failure to report for a scheduled VA examination, without good cause shown, could be the basis for his claim to be decided without the benefit of a VA examination. 38 C.F.R. § 3.655. After reviewing the record, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed left knee and right hip condition was incurred in or is otherwise related to service? The examiner is asked to review and discuss as necessary the March 2021 opinions for right knee and right ankle. If the examiner disagrees with the rational of the March 2021 opinion, it is necessary to explain in detail with medical references as to why the March 2021 opinion is incorrect. (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed knee condition has been caused by or aggravated by any of the Veteran's service-connected disabilities? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 3. Confirm that the VA medical opinions provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. If the Veteran fails to report to any scheduled VA examination, a copy of the notice sent to the Veteran for the VA examination must be associated with the record. It must also be indicated whether any notice that was sent was returned as undeliverable. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Perkins, Michael 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.