Citation Nr: 22005751 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 20-05 948 DATE: February 2, 2022 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a rating in excess of 10 percent for service-connected left ankle strain is remanded. Entitlement to a rating in excess of 10 percent for service-connected right ankle strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1966 to April 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office. In March 2021, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See March 2021 Board Hearing Transcript. As an initial matter, the Board notes that claims of entitlement to service connection for lumbosacral strain, sciatica, and tinnitus were also denied in the August 2014 rating decision, and the Veteran submitted a timely Notice of Disagreement (NOD) in August 2015. However, in a January 2020 rating decision, service connection was granted for such claims. As this represents full grants of the benefits sought, the issues of entitlement to service connection for lumbosacral strain, sciatica, and tinnitus are not before the Board on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, the Board notes that the Veteran's claims of entitlement to a rating in excess of 10 percent for the Veteran's service-connected bilateral ankle strains were initially denied in an April 2009 rating decision. Thereafter, the Veteran submitted a timely NOD in April 2010. In September 2010, a Statement of the Case (SOC) was issued, and the Veteran was informed that he had 60 days to submit a VA Form 9, thereby perfecting the appeal. The Veteran submitted a VA Form 9 in January 2011. Subsequently, the Veteran was informed that, as his VA Form 9 was submitted more than 60 days following the issuance of the SOC, it could not be accepted to continue his appeal, but that it would be treated as a new claim of entitlement to increased ratings for his service-connected bilateral ankle strains. See January 2011 VA Correspondence. In a May 2011 rating decision, the claims of entitlement to a rating in excess of 10 percent for the Veteran's service-connected bilateral ankle strains were again denied, as was the Veteran's claim of entitlement to service connection for bilateral hearing loss. Thereafter, the Veteran submitted a timely NOD in April 2012. In January 2013, a SOC was issued, and the Veteran was informed that he had 60 days to submit a VA Form 9, thereby perfecting the appeal. The Veteran submitted a VA Form 9 in April 2013. Subsequently, the Veteran was informed that, as his VA Form 9 was submitted more than 60 days following the issuance of the SOC, it could not be accepted to continue his appeal, but that it would be treated as new claims of entitlement to increased ratings for his service-connected bilateral ankle strains and service connection for bilateral hearing loss. See July 2013 VA Correspondence. In the August 2014 rating decision, the Veteran's claims of entitlement to a rating in excess of 10 percent for the Veteran's service-connected bilateral ankle strains and entitlement to service connection for bilateral hearing loss were again denied. Thereafter, the Veteran submitted a timely NOD in April 2015 and a timely VA Form 9 in February 2020. However, in the February 2020 VA Form 9, the Veteran stated that he was only appealing the denial of entitlement to service connection for bilateral hearing loss. Nonetheless, all three issues were certified to the Board. Further, in the March 2021 hearing, the Board identified all three issues as part of the appeal and accepted the Veteran's testimony concerning each issue. Under these circumstances, the Board finds that the claims of entitlement to a rating in excess of 10 percent for the Veteran's service-connected bilateral ankle strains are properly before the Board. See Percy v. Shinseki, 23 Vet. App. 37 (2009). 1. Entitlement to service connection for bilateral hearing loss is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the evidence indicates that relevant VA treatment records have not been associated with the claims file. Specifically, the record indicates that the Veteran receives treatment at Philadelphia VA Medical Center (VAMC) and Coatesville VAMC. See Philadelphia VAMC records, received July 2014, September 2019, November 2019, and December 2021 in CAPRI; Coatesville VAMC records, received September 2019 and November 2019 in CAPRI. However, no records relating to treatment at Coatesville VAMC have been associated with the claims file since November 2019. As such, a remand is necessary to ensure that all relevant VA treatment records have been associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to allow the AOJ to obtain an adequate opinion regarding the etiology of the Veteran's bilateral hearing loss. In November 2019, the Veteran underwent a VA examination in which the examiner opined that the Veteran's bilateral hearing loss was less likely than not related to his active duty service. In support of this opinion, the examiner noted that the Veteran's service treatment records (STRs) indicated normal hearing bilaterally in 1967 and 1970 (i.e., upon entrance and separation). See November 2019 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). However, the Veteran's June 1966 enlistment examination, puretone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 15 10 LEFT 15 20 10 10 10 In the March 1970 separation examination, puretone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 20 15 LEFT 15 15 20 15 25 In other words, the Veteran's STRs indicate that the Veteran experienced puretone thresholds shifts in service. See STR-Medical. As such, the November 2019 opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Additionally, it is well settled that the absence of a hearing disability in service is not fatal to a claim of entitlement to service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, the proper inquiry is whether the Veteran's current hearing loss is related to the Veteran's conceded in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Moreover, a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In addition to clear conclusions with supporting data, a medical opinion must contain a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 201 (2008). As the November 2019 opinion relies, without elaboration, on the absence of hearing loss during service, the opinion is inadequate to the extent it relies on such. Lastly, as discussed above, potentially relevant VA treatment records have not been associated with the claims file. Moreover, the record indicates that, at the time of the November 2019 examination, records relating to treatment at Coatesville VAMC after November 2016 had not been associated with the claims file. See Coatesville VAMC records. As such, the November 2019 opinion is inadequate as the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, supra. For these reasons, the Board finds the November 2019 opinion to be inadequate with respect to the etiology of the Veteran's bilateral hearing loss. As such, a remand is necessary to obtain an adequate opinion regarding the etiology of the Veteran's bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board acknowledges that the Veteran submitted a statement from his primary physician, opining that there was no doubt that his in-service noise exposure and hearing loss are connected medically. However, the physician did not provide a rationale in support of the opinion. See April 2021 Private Opinion. As such, the Board finds the April 2021 private opinion to be conclusory and, therefore, inadequate for adjudication purposes. See Stefl v. Nicholson, supra; Nieves-Rodriguez v. Peake, supra. 2. Entitlement to a rating in excess of 10 percent for service-connected left ankle strain is dismissed. 3. Entitlement to a rating in excess of 10 percent for service-connected right ankle strain is dismissed. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, a remand is warranted as the evidence indicates that there may be relevant medical records that are not associated with the claims file. Specifically, as discussed above, records relating to treatment at Coatesville VAMC have not been associated with the claims file since November 2019. See Coatesville VAMC records. Additionally, the record indicates that the Veteran receives treatment from Dr. D. Lieberman. However, records relating to such treatment have not been obtained since October 2018. See Dr. D. Lieberman records, received October 2018. As such, a remand is necessary to allow the AOJ to obtain pertinent medical records. See 38 U.S.C. § 4103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, supra; Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Second, a remand is necessary to afford the Veteran with an adequate examination regarding the nature and severity of his service-connected bilateral ankle strains. The Veteran was last afforded a VA examination regarding his service-connected bilateral ankle strain in November 2019. In this examination, the examiner noted a current diagnosis of bilateral osteoarthritis of the ankle. However, the examiner also noted that the Veteran's diagnosis of bilateral ankle strain remained unchanged. As such, it is unclear whether the Veteran's diagnosed bilateral osteoarthritis is a progression of his service-connected bilateral ankle strain, or, if not, whether the symptomatology attributable to each condition can be separated. Additionally, as discussed above, potentially relevant medical records have not been associated with the claims file. As such, the examination is inadequate as the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, supra. For these reasons, the Board finds the November 2019 examination to be inadequate for ratings purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and severity of the Veteran's service-connected bilateral ankle strains. See Barr v. Nicholson, supra. Lastly, even if the Board could find the November 2019 examination to be adequate for adjudication purposes, a remand is necessary as the evidence indicates that the severity of the Veteran's bilateral ankle strains may have worsened since such examination. Specifically, in March 2021, the Veteran testified that his bilateral ankle condition manifests with instability, which causes him to stumble and fall. See March 2021 Board Hearing Transcript. In April 2021, the Veteran clarified that he stumbles and falls approximately once or twice a month. See April 2021 Correspondence. Importantly, the November 2019 examiner noted that the Veteran did not experience instability. See November 2019 VA Ankle Conditions DBQ. Therefore, the Board finds that a new VA examination is needed to ascertain the current nature and severity of his service-connected bilateral ankle strains. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, to include records relating to treatment from Dr. D. Lieberman, as well as records relating to treatment at Coatesville VAMC from September 209 to current, and at Philadelphia VAMC from December 2021 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the etiology of the Veteran's bilateral hearing loss. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including employment, noise exposure, and onset and progression of symptomatology. (b.) Opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hearing loss is related to his active duty service, to include conceded noise exposure. (c.) In formulating the requested opinion, the examiner is instructed to consider and specifically address: i. The Veteran's in-service puretone threshold shifts; and ii. The Veteran's service-connected tinnitus. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to perform an evaluation or offer an opinion without resort to speculation, a thorough explanation as to why such cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that any such reports must be taken into account in formulating the requested opinions. The examiner is also reminded that noting that a hearing disability did not manifest in service as the sole basis for forming a negative opinion, without additional explanation, will not be adequate. The examiner is further reminded that if an opinion is based on Institute of Medicine's 2006 report, titled "Noise and Military Service: Implications for Hearing Loss and Tinnitus," the apparently contradictory finding therein must be addressed. See McCray v. Wilkie, 31 Vet. App. 243 (2019). 3. After completing the development in Section One above, and any additional development warranted by the record, schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity of the Veteran's service-connected bilateral ankle strains. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. If the Veteran describes flare-ups, the examiner must elicit information regarding the frequency, severity, and duration thereof. (b.) Identify all current manifestations that are residuals of, or are otherwise attributable to, the Veteran's bilateral ankle strains. The examiner is asked to specifically address: i. Whether the Veteran's diagnosed bilateral osteoarthritis of the ankles is a progression of, or is otherwise attributable to, his service-connected bilateral ankle strains. ii. If not, address whether the symptomatology attributable to each condition be differentiated. (c.) Test and document the range of motion (ROM) for the bilateral ankles in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. For each ROM, explicitly identify the degree in which pain is first evidenced by the Veteran's visible behavior. If the examiner is unable to conduct the required testing or concludes that such testing is not necessary in this case, a thorough explanation must be provided. (d.) The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (e.) If the Veteran describes flare-ups, after documenting the frequency, severity, and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. (f.) The examiner is asked to consider and specifically address the Veteran's March 2021 and April 2021 reports of experiencing instability resulting in stumbles and falls. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. (continued on the next page) If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.