Citation Nr: 18132249
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-02 418
DATE:	September 6, 2018
ORDER
Service connection for bilateral hearing loss is denied.
REMANDED
Service connection for a right knee disability is remanded.	
FINDING OF FACT
The preponderance of the evidence of record is against finding that the Veteran has a current hearing loss disability in either ear for VA purposes.
CONCLUSION OF LAW
The criteria for service connection for bilateral hearing loss disability are not met.  38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served in the Navy Reserve and Air Force Reserve from April 1987 to January 2013.
Service connection for bilateral hearing loss
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2018).
Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
The Veteran asserts that she has bilateral hearing loss due to in-service noise exposure.
Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2018).  The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).
Service treatment records do not show any complaints, findings, or diagnoses of hearing loss, and examinations do not show hearing loss disability in either ear as defined by VA.  38 C.F.R. § 3.385.
At a November 2013 VA examination, audiometric testing revealed hearing threshold levels of 15, 15, 15, 20, and 10 decibels in the right ear and 15, 15, 20, 15, and 25 decibels in the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz respectively.  Maryland CNC speech recognition scores were 96 percent in the right ear and 94 percent in the left ear.  The examiner indicated that the Veteran had normal hearing in both ears for VA purposes.
A February 2016 private audiology report provides the results of audiometric testing in graphical form.  The Board’s interpretation of the results reveals hearing threshold levels of 20, 15, 15, and 15 decibels in the right ear and 15, 10, 20, and 40 decibels in the left ear, at 500, 1000, 2000, and 4000 Hertz respectively.
At an August 2016 VA examination, audiometric testing revealed hearing threshold levels of 15, 15, 20, 20, and 20 decibels in the right ear and 10, 10, 20, 30, and 30 decibels in the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz respectively.  Maryland CNC speech recognition scores were 98 percent in the right ear and 96 percent in the left ear.  The examiner stated that the Veteran had normal hearing in both ears for VA purposes.  The examiner further stated that the Veteran’s hearing loss does not meet the criteria for VA disability at the November 2013 VA examination or February 2016 private examination.  The examiner also indicated that the change in hearing from a 1993 service examination to a 2007 service examination does not meet the criteria for a significant threshold shift.
Given the above, the VA examination findings show that the Veteran does not have a hearing loss disability in either ear as defined by VA.  38 C.F.R. § 3.385.  While the Board’s interpretation of the private audiogram indicated hearing loss disability in the left ear—with a finding of 40 decibels at 4000 Hertz, the August 2016 VA examiner’s interpretation was that there was no hearing loss disability for VA purposes.  The Board defers to the VA examiner and finds the examiner’s interpretation to be of greater probative value.  Hayes v. Brown, 9 Vet. App. 67 (1996).  Moreover, as two VA examinations—one before and one after the private examination—did not show hearing loss disability for VA purposes, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has a current hearing loss disability for VA purposes.  As there is no hearing loss disability that can be related to active service, the Veteran’s claim for service connection for bilateral hearing loss disability must be denied.  38 U.S.C. §§ 1110, 1131; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992).
The Board notes that the Veteran is competent to give evidence about observable symptoms such as diminished hearing.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, she is not competent to self-diagnose hearing loss to an extent recognized as a disability for VA purposes as that requires audiometric and speech recognition testing.
Given the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has a current hearing loss disability for VA purposes.  Accordingly, service connection for bilateral hearing loss disability is not warranted.  As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
Service connection for a right knee disability is remanded.
The Veteran asserts that she injured the right knee at the same time she injured the right ankle but it was not until 2011 when an MRI showed a torn meniscus and she underwent surgery.
Service treatment records show that the Veteran sprained the right ankle in January 2008 and saw an orthopedist for her knee sometime prior to December 2011.  An informal line of duty determination shows that she sprained the right ankle while on annual tour.
Private medical records during Reserve service indicate that the Veteran had right knee problems.  A July 2009 record shows complaints of right knee pain and a finding of medial joint line pain but no x-ray abnormalities.  No history of knee surgery was reported and x-rays showed no evidence of previous bony excisional surgery.  A June 2010 record shows complaints of ongoing right knee pain and a diagnosis of tendonitis.  
Post service, a March 2016 VA medical record shows a history of a meniscectomy in 2008.  The Veteran reported that the meniscus tear directly related to her right foot injury and resultant gait.  While the date of surgery appears to be incorrect, the record indicates that the Veteran underwent surgery for a torn meniscus sometime during her Reserve service.
Also of note, a November 2013 rating decision granted service connection for bilateral plantar fasciitis.
Given the Veteran’s right knee problems during Reserve service, she should be afforded a VA examination to determine whether a right knee disability had its onset during any period of active service or is related to such service.  Given her assertion that her right knee disability is secondary to her right foot disability, an opinion on whether any right knee disability was caused or aggravated by the service-connected bilateral plantar fasciitis should also be obtained.
The matter is REMANDED for the following actions:
1. Ask the Veteran to submit any private medical records in her possession, to include the MRI of the right knee and report of meniscectomy, or an authorization form for any such records so that VA may request them on her behalf.  Obtain all adequately identified records. 
2. Obtain any VA treatment records since March 2016.
3. Schedule the Veteran for a VA examination to determine the etiology of her right knee disorder.  The examiner should review the claims file and note that review in the report.  The examiner should ensure that all indicated tests and studies are conducted.  The examiner should discuss the Veteran’s treatment records during Reserve service showing the right ankle injury in January 2008 and subsequent complaints of right knee pain, and post service VA medical records indicating a history of meniscectomy.  The examiner should also discuss the Veteran’s statements regarding the history and chronicity of symptomatology.  The examiner should provide a complete rationale for all conclusions.
(a.) The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disorder had its onset during any period of active service during Reserve service or is otherwise causally related to such service, to include the injury during which she suffered the right ankle sprain.
(b.) The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disorder was caused or aggravated by the service-connected bilateral plantar fasciitis.
(Continued on the next page)
 
4. Then, readjudicate the claim.  If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.
 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. W. Kim, 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

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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