Citation Nr: 22008088 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 12-33 466 DATE: February 11, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left knee disability to include as due to pes planus is remanded. Entitlement to service connection for a right knee disability to include as due to pes planus and/or a left knee disability is remanded. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability meeting the criteria of 38 C.F.R. § 3.385. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active-duty service with the Marine Corps from May 1978 to May 1982; July 1982 to September 1985; and with the Army from June 2009 o January 2010 to include Reserve Service. This matter is on appeal from a December 2008 rating decision. The Veteran was afforded a March 2013 hearing before a Veterans Law Judge; a transcript of the hearing has been associated with the claims record. The Board remanded this appeal in May 2013 for additional development. The Board notes that during the pendency of the appeal, a November 2021 letter informed the Veteran that the Veterans Law Judge who held the March 2013 hearing was no longer employed with the Board. The letter noted that a complete transcript of the hearing was available and therefore a decision could be made on the appellate record as is and afforded the Veteran another opportunity for another hearing. In January 2022 the Veteran responded that he did not wish to appear at another hearing and have his case considered based on the evidence of record. The Board also notes that the issues considered in the May 2013 Board remand included entitlement to service connection for hearing loss; left knee disability; right knee disability; and for a psychiatric disorder. During the pendency of the appeal an April 2021 rating decision granted service connection for a psychiatric disorder; therefore, the issues remaining on appeal before the Board are for hearing loss; left knee disability and right knee disability. Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection for chronic diseases listed in 38 U.S.C. sections 1101 (3) and 38 C.F.R. § 3.309(a), such as bilateral sensorineural hearing loss, may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole. See Evans v. West, 12 Vet. App. 22, 26 (1998). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107(b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral Hearing Loss The Veteran asserts bilateral hearing loss as related to active-duty service. In February 1999 the Veteran reported occasional hearing loss since his time in the Marines and reported being "surrounded by loud noises." The provider assessed the Veteran with hearing loss but did not record or document any measured puretone values. In a March 1999 VA examination, the Veteran's puretone thresholds were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 10 10 5 5 LEFT 15 10 10 5 Maryland CNC testing was 96 percent for the right ear and 98 percent for the left ear. The examiner gave a diagnosis of normal hearing within normal limits. In a December 2008 audiology consultation, the Veteran reported slight difficulty with hearing. The Veteran's puretone thresholds were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 10 15 15 LEFT 15 10 15 15 The provider noted the Veteran's hearing was within normal limits with "excellent speech discrimination. The provider also noted that threshold may have been elevated because of observed "hesitancy to respond to puretones." In November 2010 the Veteran denied hearing loss. In March 2011 the Veteran reported difficulty hearing "in all situations." The Veteran's puretone thresholds were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 10 25 20 LEFT 25 15 20 20 Maryland CNC testing was 100 percent for the right ear and 100 percent for the left ear. The treating provider found the Veteran's hearing acuity to be "essentially stable" with slightly decreased thresholds. The provider noted that the measured thresholds may be slightly elevated, and that the Veteran asserted that his tinnitus interfered with measurement. The provider indicated that after "numerous reinstruction" the Veteran's thresholds did improve. In May 2013 the Board remanded the appeal for a new examination on the nature and etiology of the Veteran's hearing loss. In a July 2020 VA examination, the Veteran's puretone thresholds were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 25 20 25 20 23 LEFT 50 50 55 85 60 Maryland CNC testing was 96 percent for the right ear and 78 percent for the left ear. The examiner gave a diagnosis of normal hearing for the right ear. The examiner also found that the measurements made for the left ear were not valid or appropriate for rating purposes and indicated that they were inconsistent with organic hearing loss; the examiner noted that there was inconsistent response to puretones after reinstruction with left ear testing. The Board notes here that the Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). In this regard, the Court has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Having reviewed the record evidence, the Board finds that the Veteran has not cooperated with VA efforts to provide the Veteran with an adequate medical examination. The Board notes that in the following July 2020 VA examination as requested by the May 2013 Board remand, the examiner found the Veteran's puretone threshold and CNC findings measuring the left ear to be invalid for rating purposes due to the Veteran's inconsistent responses during testing. In light of the numerous VA examinations already performed, and the Veteran's suboptimal efforts to conduct testing, the Board concludes that a remand to attempt to obtain another VA examination would be fruitless. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). After review of the evidence, the Board finds that the Veteran's bilateral ear puretone threshold for the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz was not 40 decibels or greater; the thresholds at three of the frequencies were not 26 or greater; and/or the speech recognition score using the Maryland CNC Test was not less than 94 percent. 38 C.F.R. § 3.385. Therefore, the weight of the evidence is against finding that the Veteran has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Without competent evidence of bilateral ear hearing loss, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Therefore, without a finding of a current disability, service connection is not warranted. The Board has considered the Veteran's statements. However, the results of testing prepared by skilled professionals are more probative of the degree of the disability because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND The Board finds that remand is warranted for additional development. Regarding the Veteran's right and left knee disability, the Veteran at the March 2013 hearing testified that he injured his knees in service due to a car accident during service as well as from playing football. In a July 2020 VA examination as requested by the May 2013 Board remand, the Veteran reported that during service he went through heavy duty to include jumping off 5-ton trucks and lifting heavy objects and artillery. The Veteran further stated that he had to see a doctor and was given a cast for ligament tears. The examiner opined that it was less likely than not that the Veteran's claimed right and knee disabilities were related to service. The examiner stated, "while there is direct evidence that the Veteran has bilateral knee condition aggravated by time in service, there is no evidence to indicate that it was the result of pes planus." In an August 2021 addendum opinions, the examiner found the Veteran's diagnosed disabilities to be form the result from "wear and tear and aging process" and not related to his pes planus. However, the opinion did not discuss the Veteran's statements regarding lifting heavy objects and jumping off trucks in heavy duty in the opinion or whether that would be part of the "wear and tear" as indicated in the August 2021 opinion. The examiner also did not identify a baseline in relation to an opinion relating to his pes planus. As such, the Board finds the opinion inadequate, and remand warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who provided the July 2020 and August 2021 medical opinion on the Veteran's right and left knee disability. The record and a copy of this remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the July 2020 and/or August 2021 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. The VA examiner should opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is related to service? (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is due to pes planus? (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is aggravated by pes planus? (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability is related to service? (e.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability is due to pes planus and/or left knee disability? (f.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability is aggravated by pes planus and/or left knee? (g.) The examiner is advised that "Aggravation" is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. If a baseline cannot be established, the examiner should explain why. (h.) In providing the above opinions, the VA examiner should discuss the Veteran's March 2013 hearing testimony; December 1998 statement regarding left knee injury; and findings in the July 2020 and August 2021 VA examination and opinion to include the Veteran's reported statements of knee injuries relating to a car accident and football injury in service. (i.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (j.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.