Citation Nr: 18140023 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-06 926 DATE: October 2, 2018 ORDER The issue of entitlement to service connection for bilateral hearing loss is denied. REMANDED The issue of entitlement to service connection for a lung condition is remanded. The issue of service connection for a disability manifested by fatigue is remanded. The issue of service connection for a disability manifested by shortness of breath is remanded. The issue of service connection for a disability manifested by right-sided pain is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from January 2002 to May 2002 and October 2003 to April 2005. He also had additional National Guard service. These claims were most recently before the Board of Veterans’ Appeals (Board) in August 2015, when they were remanded for further development. A September 2018 informal brief raised the issue of entitlement to an increased evaluation for traumatic brain injury. This has not been adjudicated or developed for appellate review and the Board refers it to the RO. The Veteran contends that he now has bilateral hearing loss as a result of noise exposure active duty. Certain chronic diseases, including sensorineural hearing loss as an organic disease of the nervous system, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a one-year presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 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, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2017). The Board points out that the absence of in-service evidence of hearing loss, including one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hensley also provides that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and his current disability. The question for the Board is whether the Veteran’s currently diagnosed hearing loss is related to service; that is, whether it manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has bilateral hearing loss, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The record, including the Veteran's service treatment records and VA and private post-service treatment records, simply contains no evidence of chronic bilateral hearing loss during active duty or within the applicable presumptive period. The preponderance of the evidence is also against finding that a nexus exists between the Veteran’s bilateral hearing loss and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A December 2015 VA examiner related that the Veteran's pure tone test results were not valid for rating purposes because the Veteran had non-organic hearing loss, and a Word Discrimination Score was not appropriate for this Veteran. The examiner diagnosed normal bilateral hearing. The examiner opined that the Veteran’s bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that the Veteran had non-organic hearing loss, and his true organic hearing could not be obtained. Audiograms dated in September 2006 and April 2008 indicated hearing within normal limits. No hearing loss was incurred in military service. The Veteran's audiograms documented that there was no hearing loss incurred in military service. Any hearing loss could not logically be attributed to military noise exposure. The examiner cited a large-scale study mandated by Congress that found that there was insufficient scientific basis for delayed or late onset noise-induced hearing loss. It noted that in cases where entrance and separation audiograms were normal, there was insufficient scientific basis for concluding that hearing loss that developed years later was causally related to military service. The examiner quoted three paragraphs from the study verbatim. The examiner noted that the Veteran's history of military noise exposure was documented and conceded. The objective evidence, however, was clear that no hearing loss was incurred in military service. While the Veteran believes he has bilateral hearing loss that is related to an in-service noise exposure, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence consisting of the December 2015 VA medical opinion. REASONS FOR REMAND The claims of service connection for a lung condition, a disability manifested by fatigue, a disability manifested by shortness of breath, a disability manifested by right-sided pain are remanded. The Board's August 2015 remand requested that the Veteran be provided an appropriate VA examination, preferably with a qualified pulmonary specialist, to ascertain the current nature and likely etiology of any lung condition, fatigue and/or disorders manifested by shortness of breath and/or right sided pain. Among other things, the examiner was to address whether it is at least as likely as not that any identified diagnosis was caused or aggravated by a service-connected disability, including PTSD with history of somatization disorder and anxiety disorder with non-anginal chest pain, or treatment prescribed for such disability. A January 2016 VA examination report provides a diagnosis of spontaneous pneumothorax with pleuritic chest pain. The Veteran's complaints of “pleurisy” were secondarily related to the spontaneous pneumothorax. Pain was a result of the Veteran's pneumothorax and shortness of breath was a functional impairment of the Veteran's respiratory condition. The report notes that the Veteran clarified that his claimed fatigue was being easily winded and having shortness of breath with minimal exertion. However, the report fails to address whether it is at least as likely as not that any identified diagnosis was caused or aggravated by a service-connected disability, as specifically requested by the Board's remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Forward copies of all pertinent records from the Veteran’s eFolders to the VA examiner who conducted the January 2016 VA examination (or a suitable substitute if this individual is unavailable) for an addendum. Following a review of the relevant evidence, the examiner must address the following questions: (a) Is it at least as likely as not (within the realm of 50 percent probability or greater) that any identified diagnosis was caused by a service-connected disability, including PTSD with history of somatization disorder and anxiety disorder with non-anginal chest pain, or treatment prescribed for such disability? (b) Is it at least as likely as not (within the realm of 50 percent probability or greater) that any identified diagnosis was aggravated by a service-connected disability, including PTSD with history of somatization disorder and anxiety disorder with non-anginal chest pain, or treatment prescribed for such disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. Detailed rationale is requested for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. (Continued on the next page)   An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Davitian, Counsel