Citation Nr: 18160688
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-48 108
DATE:	December 27, 2018
REMANDED
Entitlement to service connection for a right wrist disability is remanded.
Entitlement to service connection for a left knee disability is remanded.
Entitlement to service connection for a back disability is remanded.
Entitlement to service connection for a left ankle disability is remanded.
Entitlement to service connection for a right ankle disability is remanded.
Entitlement to service connection for right ear hearing loss is remanded.
Entitlement to service connection for left ear hearing loss is remanded.
REASONS FOR REMAND
The Veteran had active service in the U.S. Navy from June 1989 to May 1993.
1. Entitlement to service connection for a right wrist disability is remanded.
2. Entitlement to service connection for a left knee disability is remanded.
3. Entitlement to service connection for a back disability is remanded.
4. Entitlement to service connection for a left ankle disability is remanded.
5. Entitlement to service connection for a right ankle disability is remanded.
The Veteran contends that he has disability of the right wrist, left knee, back, and bilateral ankles caused by service.  Specifically, he contends that his right wrist disability is due to an in-service August 1992 injury to the hand; his left knee disability is due to an in-service fall from a ladder in November 1989; his bilateral ankle disability is due to an in-service December 1992 injury; and his back disability is due to an in-service fall down stairs, which are noted in his service treatment records (STRs).
Although the medical records do not show current diagnoses of the right wrist, left knee, back and bilateral ankles, the Veteran reports pain in these joints.  Recent development by the Court of Appeals for the Federal Circuit (Federal Court) has held that the term “disability” as used in 38 U.S.C. 1110, “refers to the function impairment of earning capacity, not the underlying cause of said disability,” and held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Notably, the Federal Court limited its holding, stating “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain.... To establish the presence of a disability, the veteran will need to show that her pain reaches the level of functional impairment of earning capacity.” Id. at 1367-68. Essentially, subjective pain in and of itself will not establish a current disability. Rather consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Accordingly, remand is required to afford the Veteran a VA examination(s) to determine whether the Veteran has any current disabilities of the right wrist left knee, back and bilateral ankles that are attributable to service.  Further, as part of the examination(s), if no diagnoses are rendered, the examiner should assess the extent to which the Veteran’s symptoms, including pain, result in functional impairment, and whether those symptoms are attributable to service.
Regarding the back, in June 2001, the Veteran was diagnosed with spondylosis at L5 with Grad I anterolisthesis of L5 on S1. in April 2008, the Veteran was diagnosed with spondylosis of L5 with spondylolisthesis L5 on S1.  As indicated above, the Veteran reported that he had falls in service.  Therefore, a VA examination to determine the etiology of the Veteran’s back disability is required.  
6. Entitlement to service connection for right ear hearing loss is remanded.
7. Entitlement to service connection for left ear hearing loss is remanded.
The Veteran contends that he has a bilateral hearing loss disability due to service.  The Board notes that although the RO indicates that the Veteran does not have hearing loss in his right ear for VA purposes, the Veteran does have hearing loss in his right ear as noted on the February 2014 VA examination.
In this regard, the February 2014 VA examination shows that the auditory threshold in the 3000 and 4000 Hertz is 75 decibels, which pursuant to 38 C.F.R. § 3.85 indicates a hearing loss disability for VA purposes.  See 38 C.F.R. § 3.85 (indicating that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater…)
Regarding the left ear, a March 2014 VA examiner determined that pre-existing left ear hearing loss as noted on the July 1988 entrance examination was not aggravated because although there were temporary threshold shifts noted in June 1989 and May 1992, the thresholds improved and returned to the same levels that were present on the entrance examination.  Similarly, the examiner determined that right ear hearing loss was not related to service.  No explanation was provided as to why the fact that the threshold shifts were temporary supported the conclusion that it was unlikely the Veteran’s current hearing loss disability was related to in-service noise exposure. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”).

The Board notes that during the pendency of the appeal, service connection for tinnitus was granted in a July 2016 rating decision.  As tinnitus is service-connected and VA examiners acknowledge a temporary threshold shift while the Veteran was in service, the Board finds that another VA examination is warranted to determine the nature and etiology of his left and right ear hearing loss disability.  
The matters are REMANDED for the following action:
1. Schedule a VA examination and obtain a VA medical opinion addressing the etiology of the Veteran’s right wrist, left knee, right ankle, and left ankle disabilities. The claims file must be reviewed by the examiner. The examiner is advised that the Veteran is competent to report symptoms, and that the Veteran’s reports must be considered in formulating the opinion.
The examiner must render an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right wrist, left knee, right ankle and left ankle pathologies are related to disease or injury incurred or aggravated in service, including reported in-service falls, as reflected in the service treatment records.
Rationales should be given for all opinions.  If no diagnoses are rendered, the examiner should assess the extent to which the Veteran’s symptoms, including pain, result in functional impairment, and whether those symptoms are attributable to service.
2. Schedule a VA examination and obtain a VA medical opinion addressing the etiology of the Veteran’s low back disability, as specified below. The claims file must be reviewed by the examiner. The examiner is advised that the Veteran is competent to report symptoms, and that the Veteran’s reports must be considered in formulating the opinion.
The examiner must render an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s back pathology is related to disease or injury incurred or aggravated in service, including reported in-service falls, as reflected in the service treatment records.
The examiner should address any current findings of spondylosis/ spondylolisthesis/ anterolisthesis. If the spondylosis, spondylolisthesis, or anterolisthesis are found to be congenital defects, the examiner must specifically state whether they are static in nature (meaning they are incapable of improvement or deterioration).
Rationales should be given for all opinions.
3. Schedule a VA examination and obtain a VA medical opinion addressing the etiology of the Veteran’s left and right ear hearing disabilities, as specified below. The claims file must be reviewed by the examiner. The examiner is advised that the Veteran is competent to report symptoms, and that the Veteran’s reports must be considered in formulating the opinion.
Is it at least as likely as not (50 percent probability or more) that the Veteran’s pre-existing left ear hearing loss disability was aggravated beyond its natural progression by any in-service event or injury to include in-service noise exposure?
Is it at least as likely as not (50 percent probability or more) that the Veteran’s right ear hearing loss: (1) began during active service; or (2) is otherwise related to an incident in service, to include as due to noise exposure?
Rationales should be given for all opinions.  If the rationale for the opinion references hearing threshold shifts in service, the examiner should explain the significance of these shifts, including the significance of temporary versus permanent shifts.
 
Shamil Patel
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Hemphill, Associate 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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