Citation Nr: 1644778 Decision Date: 11/29/16 Archive Date: 12/09/16 DOCKET NO. 12-17 551A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for a bilateral hand disability. ATTORNEY FOR THE BOARD P. Wirth, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the United States Army from February 1986 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. A January 2012 rating decision denied service connection for bilateral hearing loss and right hand numbness, while a March 2012 rating decision denied service connection for left hand numbness. These claims were previously before the Board in September 2015, when the claims were remanded for further development. FINDINGS OF FACT 1. A chronic hearing loss disorder was not shown in service or for several years thereafter, and the most probative evidence fails to link the current disorder to service. 2. The competent evidence shows that the Veteran did not exhibit a bilateral hand disorder in service or within one year of separation from service, and that any current hand disorders are not casually or etiologically related to his service, including as due to his pre-existing thoracic scoliosis or service-connected gouty arthritis of the left knee or degenerative disc disease of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 2. The criteria for establishing service connection for a bilateral hand disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). VA's duty to notify was satisfied by letters dated in May 2011 and February 2012. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The record also reflects that VA has made efforts to assist the Veteran in the development of his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA medical records, VA examination reports, private treatment records, and the statements of the Veteran. In a January 2012 statement, the Veteran reported that he began treatment with VA in January 2011. Although VA requested treatment records for the Veteran beginning in January 2011, VA was only able to locate records beginning in May 2011. In February 2012, VA made a formal finding as to the unavailability of the records, and the Veteran was informed of the steps taken to locate the records and of their unavailability. As VA has searched for the records, any further attempts to obtain the missing treatment records would be futile. The Veteran was afforded VA examinations pertaining to his claim for hearing loss in September 2011 and March 2016, and for his bilateral hand disorder in March 2016. The Board acknowledges the Veteran's June 2016 request that he be provided new examinations if his claims were denied. However, the Board finds the examination reports collectively to be adequate, as the examiners reviewed the Veteran's claims file, interviewed the Veteran, considered the Veteran's relevant medical and military history, conducted evaluations, and provided reasoned rationales for the opinions rendered. The examiners considered all relevant evidence of record, including the Veteran's statements and the particular circumstances of his military service. The Board finds compliance with its September 2015 remand instructions in that adequate examinations were provided in March 2016 in connection with the Veteran's claims. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Therefore, the case is ready for adjudication. II. Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires competent evidence showing (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including organic diseases of the nervous system, such as sensorineural hearing loss, and arthritis, can be presumed related to service when a veteran has certain qualifying service and the chronic disease becomes manifest to a degree of 10 percent within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology from the time of service until the present may serve as an alternative method of establishing the second and/or third element(s) of a service connection claim. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology in service connection claims is limited to those disabilities explicitly recognized as "chronic" by regulation. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In addition, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused), or permanently worsened beyond its natural progression (aggravated) by, a service-connected disease or injury. 38 C.F.R. § 3.310. Finally, service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. For purposes of applying the laws administered by VA, 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 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. The lack of any evidence that a veteran exhibited hearing loss during service is not fatal to his or her claim. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, "if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for a 'disability' under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes." Hensley, 5 Vet. App. at 159 (quoting from a brief of the VA Secretary). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time that support a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A layperson is competent to identify a medical condition where the condition may be diagnosed by its "unique and readily identifiable features." Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, where symptoms are capable of lay observation, such as in the case of hearing loss, a lay witness is competent to testify to in-service injury or disease and continuity of symptoms thereafter. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt is given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss. He reports that he noticed a gradual decrease in his hearing since he exited active service in 1993. Service personnel records show the Veteran's military occupational specialty (MOS) was a cannon crewmember, which has highly probable exposure to hazardous noise. Therefore, in-service noise exposure is substantiated by the record. Service treatment records are silent for reports, treatment, and diagnosis of hearing loss or acoustic trauma. Audiometric testing conducted in February 1992 revealed puretone thresholds, in decibels, for the frequencies of interest as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 0 0 LEFT 0 5 0 0 0 In March 1993, the Veteran's puretone thresholds were reported to be: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 0 0 10 LEFT 15 5 10 5 0 During a September 2011 VA examination, the Veteran reported that he was exposed to noise from tanks and big guns while serving in artillery for seven years, but that he did not serve in combat. His post-service occupational noise exposure included the use of power tools as a Humvee maintenance contractor in Iraq for one year. He denied significant recreational noise exposure. Puretone thresholds from audiometric testing were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 40 45 55 LEFT 35 40 45 45 45 Speech recognition scores based on the Maryland CNC test were 96 percent in the right ear and 92 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. After conducting a thorough review of the Veteran's claims file and audiometric testing, the September 2011 VA examiner opined that the Veteran's hearing loss was less likely than not related to his active service. The examiner's rationale was that, although the Veteran's MOS as a cannon crewmember indicates highly probable exposure to noise, he did not serve in a combat situation. Moreover, his examination from 1993 showed puretone thresholds within normal limits bilaterally. Because the Board noted a positive threshold shift at some frequencies during service that was not addressed by the September 2011 VA examiner, the Board remanded in September 2015 for a new VA examination. At a March 2016 examination, the Veteran reported serving in the artillery unit and wearing hearing protection while firing weaponry. He denied noise exposure after military service. He had been wearing hearing aids for three years. Audiometric testing continued to show bilateral sensorineural hearing loss. After conducting a thorough review of the Veteran's claims file and audiometric testing, the VA examiner opined that the Veteran's hearing loss was less likely than not related to his active service, noting that there were no changes in his hearing while in service. The examiner opined further that there was not a permanent positive threshold shift greater than normal measurement variability in either ear during service. The examiner explained that the threshold shift documented at 500 Hertz was more likely than not the result of something medically going on with his ear at that time, such as wax or an infection. The examiner opined further that the threshold shift of 10 decibels at 4000 Hertz was not considered to be significant. The most probative evidence indicates that the Veteran's current hearing loss did not have its onset in service or within one year of his separation from service, and is not otherwise etiologically related to in-service noise exposure. The record is devoid of a positive nexus opinion that contains a clear conclusion with supporting data and a reasoned medical explanation connecting the Veteran's hearing loss to his service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds the opinions of the September 2011 and March 2016 VA examiners to be highly probative to the question at hand. They based their opinions on comprehensive reviews of the Veteran's entire claims file and service treatment records, interviews of the Veteran, and audiological testing. Moreover, they provided adequate rationales for their opinions. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). For these reasons, the opinions by the September 2011 and March 2016 VA examiners that the Veteran's hearing loss is not related to his in-service noise exposure are afforded great probative value. The Veteran is competent to report observable symptoms, such as his own ability to hear. Charles v. Principi, 16 Vet. App. 370 (2002). Although laypersons, such as the Veteran, are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), hearing loss can have many causes and the etiology falls outside the realm of common knowledge of a layperson, as it involves a complex medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship that requires medical testing to diagnose. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that laypersons are not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Consequently, the Board finds that the Veteran is not competent to diagnose the etiological cause of his current hearing loss, and the opinions provided by the audiological specialists are more probative. Since the evidence against the Veteran's claim outweighs the evidence in favor of his claim for the above-listed reasons, the Board finds that the evidence is not in equipoise and, instead, the weight of the evidence supports a finding that the Veteran's hearing loss did not have its onset in service or within one year of his separation from service, and is not otherwise related to in-service noise exposure. As the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss, the benefit-of-the-doubt doctrine is therefore not for application and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Bilateral Hand Disorder The Veteran seeks service connection for numbness in the hands. Service treatment records are silent for reports, treatment, and diagnosis of numbness in the hands or for any other disorder of the hands. A March 2010 private treatment record of A.V.H. shows the Veteran presented to the emergency department reporting swelling of the bilateral hands for one week and a history of gout. There was pain and swelling of the left wrist. The diagnosis was arthritis without x-ray verification, as well as another diagnosis that is illegible. VA treatment records show the Veteran reported to the emergency room twice in May 2011 with reports of sudden onset of joint pain. He reported that he had gout for the past 12 years and had a flare up the past two months. His most recent prior flare-up was one year ago in his left hand. His left wrist was swollen and painful. X-rays showed carpal erosions, mild soft tissue swelling consistent with a clinical diagnosis of gout, mild scapholunate widening, and mild osteoarthritis of the first carpometacarpal joint. The assessment was polyarthritis and questionable gout. In March 2012, the Veteran reported bilateral hand swelling on and off. On examination, there was no edema or point tenderness. In August 2012, the Veteran reported to the nurse that he had pain in his left hand most of the time. He did not report pain to the physician, and on examination there was good range of motion of the joints. VA records show diagnosis of and treatment for gout. At a March 2016 VA examination, the Veteran reported that the pain in his right hand started when he loaded canons repeatedly while on active duty. He could not remember the year in which it began, but it was closer to the end than the middle of his service. The pain started with throbbing in his hand, which would go away. Then, his fingers and thumb would start locking in the morning. As he started working them, the locking would go away. The locking would recur in the later part of the day. Then, he developed a tingling sensation. Lifting the artillery repeatedly is what started his right hand to lock. He never reported the hand problem or sought treatment for it while in service. The Veteran reported working in a warehouse since he left service. He used a scanner, a gun-like tool that he held in his hand and trigged with the two through four fingers, daily for seven to eight hours a day. At the time, he was working six to seven days per week. After using the scanner, he developed locking of the fingers and thumb in the right hand. When he overused his hands, the same symptoms as he experienced in service would occur, and grasping a lot caused locking in his fingers with numbness and a tingling sensation. He also reported a sore palm of his right hand. He had constant pain in his hands that was deep and present all of the time. On examination, both hands were normal. There was no pain on examination, including with use of the hands, or tenderness on palpation of the tendons. There also was no tingling sensation on percussion of the median nerve or on stretching/pinching the nerve. Hand grip strength was 4/5; however, the examiner noted the Veteran exhibited poor effort. There was no evidence of muscle atrophy. X-rays of the hands were normal with unremarkable soft tissues. After conducting a thorough review of the Veteran's claims file and testing, the examiner opined that the symptomology the Veteran reported was less likely than not incurred in or caused by his service. She also opined that there was no evidence that his symptomology was secondary to a pre-existing condition that originated during his military service, including thoracic scoliosis, and that it was less likely than not proximately due to or the result of the Veteran's service-connected gouty arthritis of the left knee or degenerative disc disease of the lumbar spine. In fact, the examiner opined that the Veteran did not have a disability in either hand based on the physical examination. There was no deformity or loss of range of motion in either hand. The examiner noted that the history provided by the Veteran and the physician examination were inconsistent. While the history was consistent with trigger finger and carpal tunnel syndrome, the examination was not consistent with those diagnoses according to the medical literature. His complaints were more consistent with degenerative changes, in that the Veteran's pain did not change with movement of the hand or palpation of the tendons. No pain was elicited from palpation of the tendons and bones in the hands, or with strength testing and resistance during the examination. The examiner also noted that the Veteran had never communicated the symptoms he described that began in service to any physician while on active duty or since. With respect to the findings of the December 2012 VA examiner that showed the Veteran had pain in the back that was constant and radiated up the back to the shoulders, the examiner noted that the Veteran did not have a hand disability. Moreover, the December 2012 examination did not provide a physical examination of the hands. The Veteran had reported left hand pain in the course of VA treatment, but only the left wrist had actually been evaluated. An x-ray showed mild degenerative joint disease in the thumb and gout erosion in the wrist. However, without a description of the physical findings, the examiner noted that it would be impossible to render any opinion in connection with the previous report of hand pain. The examiner observed that the Veteran had a well-developed musculature in the upper and lower body and had done a lot of weight lifting and exercising to keep his muscle mass that well developed. She concluded that the gripping of the weights and tools could be a source of the pain in his hands. After a thorough review of the medical and lay evidence, the Board finds that the competent evidence shows that the Veteran did not exhibit a bilateral hand disorder in service or within one year of separation from service, and that any current hand disorders are not casually or etiologically related to his service. As noted above, the March 2016 VA examiner did not find any disability with respect to the Veteran's hands. Significantly, pain, numbness, tingling, and locking in the hands are not diseases or injuries that may be considered disabilities for VA compensation purposes; rather, they are merely symptoms. See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). The presence of mere symptoms alone, absent evidence of a diagnosed medical pathology or other identifiable underlying malady or condition that causes the symptom, does not qualify as a disability for which service connection is available. See generally Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Veteran acknowledged that he did not report any hand symptoms during service. The Board notes that the Veteran reported hand and left wrist pain associated with his gout. Indeed, the May 2011 VA x-rays of the left wrist revealed swelling consistent with gout. However, the Veteran reported that his gout began in about 1999, six years after service, and he has never related his gout to service. Moreover, the March 2016 VA examiner opined that the Veteran's symptomology was less likely than not proximately due to or the result of the Veteran's service-connected gouty arthritis of the left knee. The examiner found no chronic hand disability and stated that the hand pain could be attributed to gripping weights and tools. There is no medical opinion of record that connects any hand disorder to service. Instead, the March 2016 VA examiner opined that the symptomology the Veteran reported was less likely than not incurred in or caused by his service, including as due his pre-existing thoracic scoliosis or service-connected gouty arthritis of the left knee or degenerative disc disease of the lumbar spine. The opinions were based on a comprehensive review of the Veteran's entire claims file and service treatment records, interview of the Veteran, testing, and medical literature. Moreover, the examiner provided an adequate rationale for her opinions. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the opinions by the March 2016 VA examiner that the Veteran's hand symptomatology is not related to his service is afforded great probative value. The Veteran is competent to report his symptoms of pain, numbness, tingling, and locking of the hands. However, it is now well established that laypersons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to provide medical diagnosis). Moreover, arthritis must be objectively confirmed by x-ray. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2015). Pain, numbness, tingling, and locking of the hands and arthritis can have many causes and require medical testing to diagnose and medical expertise to determine their etiology. As such, the specific issue in this case falls outside the realm of common knowledge of a layperson, as it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In addition, the contemporaneous service and VA treatment records show no concerns relating to numbness, tingling, or locking of the hands. "Statements made in the course of receiving medical care . . . are made in contexts that provide substantial guarantees of their trustworthiness." See White v. Illinois, 502 U.S. 346, 356 (1992). Thus, the Board finds that the Veteran is not competent to diagnose the onset or cause of his pain, numbness, tingling, and locking of the hands or arthritis, and the opinion provided by a medical professional is more probative. In sum, there is no medical opinion of record that connects any hand disorder to service. As such, the Board finds the competent medical evidence shows that the Veteran did not exhibit a bilateral hand disorder in service or within one year of separation from service, and any current hand disorders are not casually or etiologically related to his service, including as due to his pre-existing thoracic scoliosis or service-connected gouty arthritis of the left knee or degenerative disc disease of the lumbar spine. As the preponderance of the evidence is against the Veteran's claim of service connection for a bilateral hand disability, the benefit-of-the-doubt doctrine is therefore not for application and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a bilateral hand disability is denied. ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs