Citation Nr: 18131242
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 12-20 819A
DATE:	August 31, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
REMANDED
Entitlement to service connection for a back disorder is remanded.
Entitlement to service connection for a right hip disorder is remanded.
Entitlement to an initial disability rating in excess of 10 percent for the right knee is remanded.
Entitlement to an initial disability rating in excess of 10 percent for the left knee is remanded.
FINDING OF FACT
The preponderance of the evidence shows that the Veteran does not currently have bilateral hearing loss for VA purposes.  
CONCLUSION OF LAW
The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 2007 to February 2011.  
The Board notes that on his August 2012 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge.  However, the Veteran failed to report to his scheduled April 2016 hearing.  As such, the Board will proceed as though he withdrew his request for a hearing.
1. Entitlement to service connection for bilateral hearing loss
The Veteran seeks service connection for bilateral hearing loss that he claims is due to his military service, to include his service in Iraq.  
To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).
With respect to claims for hearing loss, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service.  Hensley v. Brown, 5 Vet. App. 155 (1993).
The Veteran’s service treatment records are completely silent for any complaints, treatment, or diagnoses of bilateral hearing loss.  At a pre-discharge VA audiological examination in November 2010, an audiological examination was conducted.  The Veteran reported that he noticed hearing loss in 2009 after being exposed to mortar fire.  However, the examiner ultimately determined that the Veteran does not have bilateral hearing loss for VA purposes, as the auditory thresholds and speech recognition did not meet the definition under 38 C.F.R. § 3.385.
Post-service VA and private treatment records dating through July 2018 do not contain a diagnosis of bilateral hearing loss and do not show auditory thresholds or speech recognition scores meeting the definition of a hearing loss disability for VA purposes.
The only evidence in support of the Veteran’s claim are his lay assertions that he currently suffers from hearing loss.  While the Veteran may, in fact, experience some level of hearing loss, the fact remains that the objective medical evidence does not support a diagnosis of hearing loss for VA purposes.  The issue before the Board is medically complex and specialized medical education pertaining to the complicated organic system of the ear, as well as the ability to interpret complicated diagnostic medical testing in the form of audiograms, is necessary to render a diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence.
The Board must deny service connection because there is no evidence the Veteran currently has bilateral hearing loss for VA purposes.  Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.”).
In sum, the Veteran’s claim fails to meet the first prong of service connection, which is the requirement of a current disability.  As the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C. § 5107 (b).  As such, the claim must be denied.
REASONS FOR REMAND
1. Entitlement to service connection for a back disorder is remanded.
The Veteran is seeking service connection for a back disorder that he contends is due to his military service.  
The Veteran’s service treatment records note he was treated during service for back pain in May 2010 that began when he was running.  The diagnosis that was provided was acute myofascial sprain of the thoracic spine.  
In support of his claim, the Veteran submitted a Disability Benefits Questionnaire (DBQ) dated in November 2014 and signed by a chiropractor that provided diagnoses of lumbalgia and scoliosis.  The chiropractor noted the onset of pain in April 2011 as a result of carrying military gear.  An etiological opinion was not provided.  
Thereafter, the Veteran was provided a VA examination in May 2015.  The VA examiner failed to provide a diagnosis of a back disorder, but also noted the Veteran’s service treatment records were unavailable for review.  However, the VA examiner stated that the November 2014 DBQ findings and, specifically, the diagnoses provided, do not correlate with the Veteran’s history.  The examiner indicated the Veteran was determined to be a reliable historian and he denied back pain (lumbalgia).  As such, the examiner concluded that the preponderance of the evidence is against a finding the Veteran has a chronic disabling back condition that is due to a motor vehicle accident or any other in-service event.  
However, VA treatment records dated in April 2018 note a diagnosis of degenerative joint disease of the lumbar spine.  
Therefore, in light of the in-service treatment for a back sprain and the current diagnosis of degenerative joint disease, the Board finds that a new VA examination is required to determine the nature and etiology of the diagnosed degenerative joint disease of the lumbar spine.  
2. Entitlement to service connection for a right hip disorder is remanded.
The Veteran is seeking entitlement to service connection for a right hip disorder that he contends is due to his military service, specifically, as a result of an injury sustained during physical training.  
The Board notes that the symptomatology of this disorder, pain, is observable by lay persons.  Further, the Board notes the holding in the recent Federal Court decision of Saunders v. Wilkie, 886 F.3d 1356 (2018), which requires the RO to schedule the Veteran for a VA examination to determine whether the Veteran’s right hip pain causes functional impairment such that it may qualify as a disability in the event an underlying diagnosis is not provided.  Thus, a new VA examination is warranted.  
3. Entitlement to initial disability ratings in excess of 10 percent for the right and left knees is remanded.
The Veteran is seeking initial ratings in excess of 10 percent for each the right and left knee.  
During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that an adequate VA examination of the joints must include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing.  See 38 C.F.R. § 4.59 (2017). 
The Veteran underwent a VA examination pertaining to the left and right knees in October 2010.  However, this examination report did not include all the required testing pursuant to § 4.59 and Correia.  This examination provided ranges of motion, but did not indicate whether pain was present during both active and passive range of motion, or whether pain was observed on weight-bearing and nonweight-bearing.  As such, a new VA examination is needed.
The Court also recently issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) which is applicable to this case.  In Sharp, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.”  Id. at 32.  The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.”  Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)).
In the October 2010 VA examination, it was also noted the Veteran suffered from flare-ups in the right and left knees.  Although the reports contain some information regarding the frequency and duration of such flare-ups, as well as certain types of functional impairment resulting therefrom, no estimation was provided regarding range of motion during flares for each knee.  In light of Sharp, a new examination is necessary.
The matters are REMANDED for the following action:
1. Schedule the Veteran for a VA examination to determine the nature and etiology of the diagnosed degenerative joint disease of the lumbar spine.  The examiner should specifically state whether any identified disorder is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service, to include the in-service diagnosis of acute myofascial sprain of the thoracic spine.  
The examiner must provide a rationale for the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record.
2. Schedule the Veteran for a VA examination to determine the nature and etiology of any identified residuals of a right hip disorder, to include pain.  The examiner should specifically state whether any identified disorder is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service.  
The examiner must provide a rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record.
3. Schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected left and right knee disabilities.  Any studies, tests, and evaluations deemed necessary by the examiner should be performed.
The examiner is instructed to review all pertinent records associated with the claims file.
It should be noted that the Veteran is competent to attest to factual matters of which he 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.
The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected left and right knee disabilities under the rating criteria. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors.
(a.) The examiner should provide the range of motion in degrees for each the left and right knees.  In so doing, the examiner should test the Veteran’s range of motion in active motion and passive motion, and state whether there is pain with weight-bearing and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report.  
(b.) The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups for the right and left knees.  
Any additional impairment on use or during flare-ups should be described in terms of the degrees of additional range of motion lost.  The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  
The examiner should also review the prior October 2010 examinations and provide a retrospective opinion as to the degrees of additional range of motion lost during flare-ups, if possible.  If unable to provide this retrospective estimate, the examiner should state why and provide a reasoned explanation for the determination.
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

 
LAURA E. COLLINS
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Berry, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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