Citation Nr: 18150125 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-39 790 DATE: November 14, 2018 ORDER Service connection for a left ankle disability is denied. Service connection for bilateral hearing loss is denied. REMANDED Service connection for a back disability is remanded. Service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran has not had a left ankle disability at any time during the appeal period. 2. The Veteran has not had hearing loss in his right ear at any time during the appeal period, and his left ear hearing loss did not manifest to a compensable degree by the end of the applicable presumptive period, has not produced continuity of symptomatology ever since service or this period, and is not related to his loud noise exposure during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1154, 5107 (2012); 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.307, 3.309, 3.385, 4.85, 4.86 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1993 to March 1996. He thereafter served in the Army National Guard, with active duty from April 2008 to July 2008 and from February 2009 to September 2009. This matter is on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA). In appealing, the Veteran requested a hearing before a Veterans Law Judge of the Board of Veterans’ Appeals (Board). One was scheduled, for which he did not appear. The scheduling appears to have been in error, however, as he previously withdrew his request. 38 C.F.R. § 20.704(e). After this matter last was adjudicated in an August 2014 statement of the case (SOC), additional evidence (the most recent VA treatment records, Social Security Administration records) was procured by VA. It is not relevant to the issues decided herein. So, initial review of it by the Regional Office (as the agency of original jurisdiction) as it pertains to these issues is not necessary. 38 C.F.R. § 20.1304(c). Preliminary Matters VA has a duty to notify a claimant seeking VA benefits. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Notice must be provided prior to initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice of how ratings and effective dates are assigned also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist a claimant seeking VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes, as suggested by the duty to notify, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity. 38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). A VA medical examination also must be provided and/or a VA medical opinion procured when necessary for adjudication. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Full notification was provided to the Veteran in an October 2012 letter. This was prior to initial adjudication via the September 2013 rating decision. Service treatment and personnel records as well as post-service VA and private treatment records regarding the Veteran are available. In August 2013, the Veteran had a VA medical examination for his left ankle which included an opinion. There also is an August 2013 opinion for his hearing. An examination was deemed unnecessary because of a July 2012 hearing assessment (only 1 year previous). Significantly, neither the Veteran nor his representative has raised any duty to notify or assist deficiencies. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (procedural arguments that are not raised need not be addressed); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (concerning the duty to notify). Service Connection Service connection means that the facts, shown by the evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Direct service connection requires a current disability, the incurrence or aggravation of an injury or disease during service, and a nexus between them. Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009). Direct service connection also may be established for any disease diagnosed after separation from service if it was incurred during service. 38 C.F.R. § 3.303(d). When a veteran served for 90 days or more during a period of war or after December 31, 1946, and manifested a chronic disease to a compensable degree within a specified number of years after service, there is a rebuttable presumption of service connection. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established for chronic diseases if there was manifestation during service or this presumptive period and subsequently, unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology is required, however, if the disease was noted but not chronic or if chronicity was questionable during service or the presumptive period. Id.; Savage v. Gober, 10 Vet. App. 488 (1997). Only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Indeed, the discussion below is limited to this evidence as well as that required to address contentions raised by the Veteran, his representative, or the record. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545 (2008). When there is an approximate balance of positive and negative evidence on service origin, the degree of disability, or any other point, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The applicable standard accordingly is at least as likely as not. 1. Left Ankle Disability The Veteran contends he has a left ankle disability due to an injury in service. The first question for the Board is whether he has a current disability that is a chronic disease and at least as likely as not either manifested to a compensable degree during service or by the end of the applicable presumptive period or produced continuity of symptomatology ever since service or this period. The second question is whether he has a current disability that at least as likely as not began during service or is at least as likely as not related to an in-service injury, disease, or event. If the answer to either question is yes, service connection will be granted. Unfortunately, the answer to both questions is no. Service connection can be granted, regardless of the theory of entitlement, only if there is a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Current means being present near or at the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed his claim in May 2012. Although a disability is typically diagnosed, symptoms such as pain can constitute a disability even without being attributed to a diagnosis if they cause functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (overturning Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Here, the Veteran currently does not have a left ankle disability notwithstanding this change in the law. The Veteran’s most recent service treatment records, which includes those dated since he completed his third and final period of active duty in September 2009, do not include any mention of his left ankle. An October 2013 letter from private Dr. B.B. mentions his considerable myalgias and arthralgias related to chemotherapy for Hodgkin’s lymphoma. However, only the Veteran’s left knee and back are discussed in particular. Once again, there is no mention of his left ankle. VA treatment records lack any mention of his left ankle in particular. (A September 2016 VA treatment record—additional evidence—is not relevant as it documents ankle pain without identifying which ankle; assuming the left ankle, there is no assessment concerning functional impairment of earning capacity.) At the August 2013 VA medical examination, the Veteran and his wife reported noticing left side weakness to include in his left ankle after chemotherapy. He reported no left ankle pain, though he did note a feeling of discomfort after standing or working for a long time. Range of motion (to include plantar flexion and plantar dorsiflexion/extension) in his left ankle initially was normal and without objective evidence of pain, including upon repetition. (The indication that there was additional limitation upon repetition therefore is erroneous.) The Veteran’s left ankle further was not painful on palpation, had normal strength, was stable, and had no ankylosis. No conditions impacting the ankle were found, and X-rays were normal. It was determined that the Veteran’s left ankle caused no functional impairment and did not impact his ability to work. Grade I sprain, with a date of September 1993 (based on service treatment records of an injury then), was diagnosed. This sprain was noted to have resolved with no recurrence. Reports of left ankle pain can be inferred from the Veteran’s November 2013 and October 2014 statements. However, he did not go further and report as to the functional impairment of earning capacity this pain produces. He simply noted in the latter statement that he quit working because of back and joint pain (which could include the left ankle). He indicated more specifically that he quit working in mid-2014 when he later filed a claim for a total disability based on individual unemployability (which was granted). Yet, he also indicated at that time that this was due to PTSD symptoms. His left ankle symptoms, in sum, did not cause him to stop working. It has not been shown that they caused any lesser functional impairment in earning capacity. To reiterate, there is no medical evidence in this regard and the Veteran’s statements at best addressed the point only vaguely. In sum, no current left ankle diagnosis has been made. The Veteran’s current left ankle symptoms also do not result in functional impairment of earning capacity even though not attributed to a diagnosis. It follows that he, in conclusion, does not have a current left ankle disability. No further discussion of the other requirements for establishing service connection accordingly is necessary. This benefit for a left ankle disability is denied. 2. Bilateral Hearing Loss The Veteran contends he has bilateral hearing loss due to in service exposure to loud noise. The first question for the Board is whether he has a current disability that is a chronic disease and at least as likely as not manifested to a compensable degree in service or by the end of the applicable presumptive period or produced continuity of symptomatology ever since service or this period. The second question is whether he has a current disability that at least as likely as not began during service or is at least as likely as not related to an in-service injury, disease, or event. If the answer to either question is yes, service connection will be granted. Unfortunately, the answer to both questions is no. Service connection can be granted, regardless of the theory of entitlement, only if there is a current disability. Brammer, 3 Vet. App. at 223. Current means being present near or at the time a claim is filed or at any time during its pendency. Romanowsky, 26 Vet. App. at 289; McClain, 21 Vet. App. at 319. The Veteran filed his claim in May 2012. Normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155 (1993). Hearing loss is a disability for VA purposes when the pure tone threshold at any frequency from 500 to 4000 Hertz is 40 decibels or greater, the pure tone threshold at three or more such frequencies is 26 decibels or greater, or speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The Board finds that the Veteran currently has left ear hearing loss, but he currently does not have right ear hearing loss. The Veteran’s most recent service treatment records include a March 2012 hearing assessment. In his left ear, only one pure tone threshold from 500 to 6000 Hertz exceeded 25 decibels 30 decibels at 4000 Hertz. In the Veteran’s right ear, none of his pure tone thresholds from 500 to 6000 Hertz exceeded 25 decibels. The previously assigned (in August 2009) score of 1 on PULHES for the hearing factor was increased to 2 in April 2013. The basis for this was not specified. A July 2012 VA hearing assessment (set forth in the August 2013 VA medical opinion, reflects that the Veteran’s hearing in his left ear was normal through 1000 Hertz. However, he had mild to moderate hearing loss from 2000 to 8000 Hertz. The Veteran’s hearing in his right ear was normal through 6000 Hertz and mild at 8000 Hertz. 8000 Hertz is well beyond the range used by VA to determine the presence of a disability, however. Only the latter hearing assessment, in sum, showed left ear hearing loss and neither showed right ear hearing loss. As there is no indication the Veteran has a medical background, he is a lay person. To the extent he reports right ear hearing loss that qualifies as a disability for VA purposes, he is not competent. A lay person is competent to diagnose a disability only if competent to identify it, if describing symptoms that support a later medical diagnosis, or if there is a contemporaneous medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Here, no medical diagnosis exists. It further is clear, based on the above, that a diagnosis requires analysis of specific test results. Hearing loss for VA purposes is not a readily observable disability, in other words. It instead is medically complex. Consequently, more probative weight is given to the competent medical evidence than to the Veteran’s reports. Hearing loss, as an organic disease of the nervous system, is a chronic disease. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). The Veteran had qualifying service to presume service connection for his current left ear hearing loss disability. He indeed served for over three years, all of which were after December 31, 1946, and during the Persian Gulf War. 38 U.S.C. § 101(33); 38 C.F.R. § 3.2(i). The applicable presumptive period is one year after service. 38 U.S.C. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). In September 2009, the Veteran completed his third and final period of active duty. Yet the preponderance of the evidence weighs against the Board finding that he manifested left ear hearing loss to a compensable degree by September 2010 or had symptoms of such continuously since service or by then. That analysis of specific test results is needed to make a diagnosis is reiterated. It also is needed to determine whether a diagnosed disability is compensable. 38 C.F.R. §§ 4.85, 4.86. No such test results dated between September 2009 and September 2010 exist, however. The closest are from an August 2009 hearing assessment contained in the Veteran’s service treatment records. There was no left ear hearing loss, much less compensable left ear hearing loss, at that time. Indeed, none of his pure tone thresholds from 500 to 6000 Hertz exceeded 25 decibels. The first confirmation of left ear hearing loss is the July 2012 VA hearing assessment. This equates to almost 2 years after the presumptive period ended. With respect to continuity of symptoms, the Veteran has not reported difficulty hearing in his left ear ever since service or the presumptive period. Even if he had, he is not competent to determine that he had left ear hearing loss or that this difficulty was attributable to it. Such a determination is medically complex, requiring interpretation of specific test results as noted above in addition to knowledge of the nervous system in general and the ears in particular. Jandreau, 492 F.3d at 1372. Next, the preponderance of the evidence weighs against the Board finding that the Veteran’s current left ear hearing loss began during service or is related to an in-service injury, disease, or event. Service treatment records do not document that he ever complained of difficulty hearing or hearing loss. Instead, he denied hearing loss on a few occasions. Service treatment records also document that his hearing in his left ear was normal in December 1992 (pre-induction). It also was normal in August 1993 (a few months after induction) except for at 3000 Hertz where is was 30 decibels, in August 2002 except for at 4000 and 6000 Hertz where it was 25 and 30 decibels respectively, in April 2008 except for at 3000 Hertz where it was 30 decibels, and in August 2009 except for at 3000 and 6000 Hertz where is was 25 decibels. Comparing the August 1993 test results to the August 2009 test results, there was no significant pure tone threshold shift. An in-service disease, in sum, is not shown. An in-service injury or event, in contrast, is shown. Due consideration is given to the places, types, and circumstances of a veteran’s service. 38 U.S.C. § 1154(a). The Veteran’s DD-214s indicate that he was an Avenger crewmember and a construction equipment repairer. Exposure to loud noise, from firing weapons, from being near operating construction equipment, and from using tools, is consistent with the duties typically expected of individuals in these positions. An August 1993 service treatment records further states that the Veteran was routinely exposed to hazardous noise. The August 2013 VA medical opinion is that his current left ear hearing loss is less likely than not related to an in-service injury or event. This opinion is entitled to substantial probative weight because it is based on an accurate medical history and provides an explanation with clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, it was noted that service treatment records are silent for complaints of hearing loss during the Veteran’s service. It also was noted that there was no significant pure tone threshold shift comparing the December 1992 test results with the test results from August 2009. The examiner, an audiologist with 20 years of experience, also indicated that though some conditions have a delayed onset after exposure to a hazard, hearing loss is not such a condition. Rather, hearing loss from hazardous noise exposure is immediate. The examiner finally indicated that ears previously exposed to noise are not more sensitive to future noise exposure. Hearing loss due to noise does not progress, apart from the addition of expected age-related pure tone threshold shifts, in other words. Scientific/medical literature was cited in support of this last point. The opinion, to include each notation and indication above, addresses both ears. Nothing suggests it would change in any way if just the left ear, the only ear with a current disability, had been addressed. A November 2011 private treatment record states that the Veteran’s hearing loss is suspected secondary to noise exposure. To the extent this statement is meant as a medical opinion, it has little probative weight. In addition to not including an explanation, it is speculative. Bostain v. West, 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993) (“may” or “could have” are too uncertain to establish nexus). Next, an individual with no medical background such as the Veteran sometimes is competent to provide a nexus opinion. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Yet, this is not one of those times. The Veteran is not competent to provide a nexus opinion that his current left ear hearing loss is related to his in-service injury or event of loud noise exposure because the issue is medically complex. It requires knowledge of the nervous system in general and the ears in particular as well as the impact of injuries or events and other factors (age, etc). Jandreau, 492 F.3d at 1372. Thus, the Board gives more probative weight to the VA medical opinion which is competent. In November 2013, the Veteran stated that a medical professional told him his hearing loss was consistent with firing weapons (and thus loud noise exposure). Yet, it is not competent medical evidence of nexus because a layperson’s account of what was said in this context is inherently unreliable. Robinette v. Brown, 8 Vet. App. 69 (1995). The Veteran, in conclusion, does not have right ear hearing loss as a current disability. No further discussion of that ear accordingly was necessary. The Veteran does have left ear hearing loss as a current disability. However, this disability is not related to his service in any way. Service connection therefore is denied for the left ear as well as for the right ear. Though the reason for this determination differs for each ear, reference is made to service connection for bilateral hearing loss being denied simply for the sake of simplicity. REASONS FOR REMAND 1-2. Back Disability and Left Knee Disability Before adjudicating service connection for a back disability and for a left knee disability, additional development is needed. Initial review of the additional relevant evidence procured by VA after the last adjudication via the August 2014 SOC must be by the Regional Office. 38 C.F.R. §§ 19.31(a-b), 19.37(a-b), 20.1304(c). The Regional Office also should initially review any additional evidence obtained per this remand. In this regard, available private treatment records are dated only through July 2013, while available VA treatment records are dated only through January 2017. Efforts must be made to obtain more from all identified sources. 38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-2); Bell v. Derwinski, 2 Vet. App. 611 (1992). New VA medical opinions finally must be rendered. The August 2013 VA medical opinions finding no nexus to service are of minimal probative value because very little explanation was provided—as is private Dr. B.B.’s October 2013 letter, which found a nexus to chemotherapy as well as service. Nieves-Rodriguez, 22 Vet. App. at 295. The matters are REMANDED for the following action: 1. Follow established procedure to obtain any relevant treatment records concerning the Veteran: (a) from VA dated from January 2017 to present and (b) from any identified private entity dated from July 2013 to present. 2. After completing paragraph 1, arrange for new VA medical opinions to be rendered. Whether new examinations are needed is left to the examiner’s discretion. The examiner shall review the claims file and opine, for each back disability and left knee disability, as to whether it at least as likely as not (a 50 percent or greater probability) began during, or otherwise is related to, the Veteran’s service. A detailed explanation is required for each answer. In this regard, the examiner is advised that discussion of medical principles as they relate to the medical and lay (non-medical) evidence and of medical literature would be of assistance to the Board. The examiner also is advised that the Veteran complained about his back during service, believes his left knee problems are due to running, crawling, climbing, etc. during service, and has undergone chemotherapy for Hodgkin’s lymphoma. 3. Then, readjudicate service connection for back and left knee disabilities. If either decision made is not fully favorable to the Veteran, issue a supplemental statement of the case. Allow him and his representative time to respond before returning this matter to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records or to report for a scheduled VA medical examination, for example, may impact the decision made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional argument or evidence, whether himself or through an appointed representative. Kutscherousky v. West, 12 Vet. App. 369 (1999). All remands by the Board, including this matter, or the United States Court of Appeals for Veterans Claims finally are to be handled expeditiously. 38 U.S.C. §§ 5109B, 7112. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becker, Counsel