Citation Nr: 18139649
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 15-02 128
DATE:	September 28, 2018
ORDER
Entitlement to service connection for right wrist condition is withdrawn.
Entitlement to service connection for right hand and thumb condition is withdrawn.
REMANDED
Entitlement to service connection for bilateral hearing loss is remanded. 
Entitlement to service connection for hypertension is remanded. 
Entitlement to an initial compensable rating for degenerative joint disease (DJD), right knee, is remanded.
Entitlement to service connection for DJD, left knee, to include as secondary to service-connected DJD, right knee, is remanded. 
FINDING OF FACT
At his August 2017 Board hearing, prior to the promulgation of a Board decision on the appeal, the Veteran withdrew his appeal seeking entitlement to service connection for right wrist condition and right hand and thumb condition. 
CONCLUSION OF LAW
The criteria for withdrawal of an appeal by the Veteran have been met with respect to the issues of entitlement to service connection for right wrist condition and right hand and thumb condition.  38 U.S.C. §7105 (2012); 38 C.F.R.§§ 20.202, 20.204 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served in the United States Army from August 1980 to June 1986.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  
Withdrawal of Claims
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2017).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. 
In the present case, the Veteran testified, on the record, at his August 2017 Travel Board hearing before the undersigned Veterans Law Judge that he wished to withdraw from appellate review his claims for entitlement to service connection for right wrist condition and right thumb and hand condition.  The Veteran was represented by the American Legion at the time of the hearing and it is presumed that he was informed of the consequences of the withdraw by his representative who also agreed to the withdraws.   As a result, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues.  Accordingly, the Board does not have jurisdiction over these issues, and this appeal is dismissed with respect to said issues.
REASONS FOR REMAND
1. Entitlement to service connection for bilateral hearing loss is remanded. 
The Veteran has hearing loss for VA purposes.  See 38 C.F.R. §3.385.  VA examinations conducted during the appeal period documented this.  The Veteran’s testimony at the August 2017 Board hearing was found to be credible regarding his exposure to acoustic trauma during active duty.  He reported that he was near six artillery guns which fired simultaneously, and he did not have hearing protection.  He testified that it was painful, and he was disoriented after the blast.  The Board finds the Veteran was exposed to acoustic trauma during active duty.  As such, the issue for the Board is whether a nexus exists between the current bilateral hearing loss disability and the in-service acoustic trauma.
The service treatment records (STR’s) do not document hearing loss for VA purposes during active duty military service.  
On a medical report of history on February 27, 1980, the Veteran denied having or ever having hearing loss or ear problems.  The audiograms in his STR’s were as follows: 
 February 27, 1980 pre-enlistment examination audiogram:
	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz	6000Hz
Right Ear	15	0	5	15	20	15
Left Ear	20	5	10	15	15	35

January 7, 1981 audiogram:
	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
Right Ear	10	5	10	15	20
Left Ear	15	10	10	15	20

November 2, 1983 audiogram:
		500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
Right Ear	15	0	10	10	15
Left Ear	10	5	10	15	15

The Veteran’s STR’s did not include an exit examination, so the Board cannot determine his hearing level upon separation from active duty. 
After service, on August 18, 1987 an audiogram indicated that the Veteran had mild high frequency hearing loss, but that it was “not progressive.”  At the time of this Army reserve audiogram, he denied any issues with his ears. 
The results from the August 18, 1987 audiogram were as follows. 
			500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
Right Ear	30	10	15	20	25
Left Ear	10	15	15	25	25
Accordingly, while the Veteran did not have hearing loss for VA purposes while in-service or shortly after he left service, his STR’s indicate worsening from his pre-enlistment examination in February 1980 to his reserve service examination in August 1987.  
The claims record includes two VA opinions, but the Board finds that neither is adequate.  Accordingly, a remand for an adequate opinion is required. The first examiner found that there was no evidence that noise induced hearing loss could occur after exposure to the noise and cited to medical evidence supporting the opinion.  Significantly, the examiner did not address the treatise evidence submitted by the Veteran. The Veteran submitted an article entitled “Adding Insult to Injury: Cochlear Nerve Degeneration after ‘Temporary’ Noise-Induced Hearing Loss” by Sharon G. Kujawa and M. Charles Liberman.  The Journal of Neuroscience, November 11, 2009, 29(45):14077-14085, 14077. This failure to address possibly conflicting medical evidence undercuts the probative value of the opinion.  
The Veteran, also, underwent an additional VA examination for his hearing loss in September 2017.  The September 2017 VA examiner opined that the bilateral hearing loss was as likely as not the result of military acoustic trauma.  To support this opinion, he relied on the Veteran’s claims of hazardous noise exposure during service, his conceded moderate probability of in-service hazardous noise exposure due to his MOS, and the documented hearing loss incurred during service. Significantly, the in-service audiometric testing reveals that the Veteran's audio acuity actually improved from the time of entrance until the time of discharge from active duty.  The cite to the documented hearing loss during service is confusing.  The examiner notes what is termed as a “mild decrease” of 15K at 3000 Hz in the left ear at enlistment but does not reference the 20K at 500Hz and the 15K at 4000Hz audiometric scores as being decreased.  This discrepancy leads the Board to question the accuracy of the review conducted by the examiner.  The examiner also did not address how some of the audiometric scores indicated an increase in acuity occurred during active duty if there was hearing loss during active duty.   Accordingly, the opinion is inadequate, and it is not probative to the etiology of the Veteran’s current hearing disability.
Therefore, neither the December 2011 or the September 2017 VA medical opinion are probative to the etiology. A new etiology opinion is required.  
As previously noted, the Veteran’s STR’s did not include a separation examination. It is not apparent if this was conducted. On remand attempts should be made to obtain the records to the extent possible.  Also, the December 2011 VA opinion referenced a December 1986 audiogram.  It appears that there is a scanned copy of this audiogram in the Veteran’s STR’s, but the date and results are not legible.  On remand, the RO should make its best efforts to find a better copy of this audiogram.
2. Entitlement to service connection for hypertension is remanded. 
In regards to the Veteran’s hypertension, the Board notes that the Veteran has not been afforded a VA examination regarding the etiology of his hypertension.  After a review of the claims file, the Board finds that there is sufficient evidence to warrant a VA examination for the Veteran’s claim for service connection for hypertension.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006).  Specifically, a review of the Veteran’s service treatment records (STRs) indicate elevated blood pressure readings with diastolic pressure over 110.  Accordingly, a remand is warranted to schedule the Veteran for an appropriate VA examination in accordance with McClendon.
3. Entitlement to an initial compensable rating for degenerative joint disease, right knee is remanded.
The Veteran’s last examination for his right knee was in December 2011.  At his August 2017 Board hearing, the Veteran indicated that his right knee has worsened since his last examination.  Where a Veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required.  See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  
On remand, the AOJ should afford the Veteran a new examination to determine the current severity of his DJD right knee disability. 
4. Entitlement to service connection for degenerative joint disease (DJD), left knee to include as secondary to degenerative joint disease, right knee is remanded. 
The Veteran underwent a December 2011 VA examination.  The examiner opined that the Veteran’s left knee condition is not caused by or aggravated by or a result of his right knee condition.  He also opined that the Veteran’s left knee is not caused by or a result of a “left knee condition” that occurred during service. 
The examiner relied on the medical evidence that indicated that the Veteran’s left knee disability of DJD was diagnosed 18 years after discharge from the Army, and that there was no objective evidence in the record that indicated this left knee condition began during military service or shortly after military service.  Instead, it was his opinion that the degenerative changes mentioned in his claims file are more consistent with a combination of age related changes and incurrent injuring during his work as a manual laborer for ten to twelve years after his discharge.
However, the Board finds that this opinion is inadequate, and a remand is required. The supporting rationale given by the examiner relies on delayed onset, lack of evidence of inservice incurrence, and an alternative etiology.  This rationale supports a negative etiology for direct service connection, but not secondary service connection.  It does not address why the current left knee condition is not proximately caused by or has not been proximately aggravated by the service connected right knee condition.  Since the examiner’s opinion on secondary service connection is not supported by an adequate rationale, the Board finds this opinion is inadequate. 
Additionally, while the examiner reported that there was not any evidence that the Veteran’s left knee condition began during service, an issue with his left knee is noted in his STR’s.  A physical therapy clinic note referenced that, on November 2, 1983, the Veteran had hyperextension in his left knee.  While this is listed in the medical history portion of the December 2011 VA examination, the VA examiner needed to address this in his rationale for his opinion that the Veteran’s current left knee condition was not caused by the left knee condition in service.  Since he did not, the Board finds the opinion on direct service connection is also inadequate. 
Accordingly, an addendum opinion is required. 
The matters are REMANDED for the following action:
1. Request from all appropriate source(s) copies of the Veteran’s complete service treatment records, including a legible copy of his separation examination, if conducted  and the report of the December 1986 audiogram, following the procedures set forth in 38 C.F.R. § 3.159.
Efforts to obtain the missing service treatment records should include, at a minimum, a request for the records from the Records Management Center (RMC).  Efforts to procure the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile.  38 C.F.R. § 3.159 (c)(2). The evidence obtained, if any, should be associated with the claims file.  If any of the records sought are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified of their right to submit alternative evidence.
2. After completing directive (1), Obtain a VA examination to determine the etiology of the Veteran’s bilateral hearing loss.  The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner.  The opinion must include a notation that this record review took place.  
After the record review and examination of the Veteran (if required by the examiner), the VA examiner is asked to respond to the following inquiry:
a.  Is it at least as likely as not that the Veteran’s bilateral hearing loss was either incurred in, or otherwise related to, the Veteran’s active duty service?
While making his determination, the examiner must consider the Veteran's conceded noise exposure during active duty, the audiogram results above, and the audiogram results, if found, at separation and in December 1986.  Additionally, the examiner should reconcile, to the extent possible, the conflicting conclusions of the Kujawa and IOM report. 
A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 
3. After directive (1) is completed, schedule the Veteran for an examination before a qualified medical professional to determine the nature and etiology of the Veteran’s hypertension.  The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner.  The opinion must include a notation that this record review took place.  It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion.
After the record review and examination of the Veteran, the VA examiner is asked to respond to the following inquiry:
a.  Is it at least as likely as not that the Veteran’s hypertension was either incurred in, or otherwise related to, the Veteran’s active duty service?
While making his determination, the examiner must consider the reports of elevated blood pressure in the Veteran’s STR’s.  
A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 
4. The Veteran should be afforded a VA examination to evaluate the current severity of his bilateral knee disabilities using the most recent DBQ form as well as to determine the etiology of any left knee disability present since the filing of the appeal. The claims folder, including a copy of this remand, should be made available to the examiner for review prior to the examination.  The examiner should acknowledge such review in the examination report.
After the record review, interview with the Veteran regarding pertinent medical history and examination, the VA examiner is asked to respond to the following inquiry:
a.	Is it at least as likely as not that the Veteran’s left knee condition was either incurred in, or otherwise related to, the Veteran’s active duty service, to include the November 1983 knee hyperextension injury?

b.	Is it at least as likely as not that the Veteran’s left knee condition is proximately caused by, or proximately aggravated by, or is otherwise related to, the Veteran’s service-connected right knee condition?

A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  The examiner should address the Veteran's report of medical history.  If there is a medical reason to doubt the Veteran's reported history, this should be stated with supporting rationale provided.  
Any medically indicated tests should be conducted.
 
G. A. WASIK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Wade, Associate Counsel 

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