Citation Nr: 18151043 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-35 464 DATE: November 16, 2018 ORDER Service connection for bilateral hearing loss is denied. REMANDED The issue of service connection for a bilateral foot disability is remanded. FINDING OF FACT 1. There is no probative medical evidence that indicates the Veteran has impaired hearing sufficient for VA purposes, and no probative evidence that his current impaired hearing was incurred in or is otherwise related to service. CONCLUSION OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from August 1983 through June 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s July 2016 substantive appeal (VA Form 9) perfected the appeal of service connection for bilateral foot disability, but did not include his claim for service connection for bilateral hearing loss. However, a January 2018 supplemental statement of the case (SOC) included the issue of service connection for bilateral hearing loss. To the extent that appeal for service connection for bilateral hearing loss was not timely completed by the Veteran, by treating a claim as if it is part of a timely filed substantive appeal, VA effectively waived all objections to the procedural adequacy of the appeal with respect to that issue. Percy v. Shinseki, 23 Vet. App. 37 (2009). Therefore, this claim is currently before the Board on appeal. 1. Service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present 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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Bilateral hearing loss, as an organic disease of the nervous system, constitutes a “chronic” disease listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as bilateral hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385, which provides that impaired hearing will be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran’s January 1983 report of medical examination at enlistment showed normal hearing bilaterally. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 5 LEFT 10 5 10 0 0 The Veteran’s May 1986 report of medical examination at separation showed normal hearing bilaterally. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 10 LEFT 5 0 5 0 -5 On the authorized audiological evaluation in June 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 25 LEFT 15 10 20 20 20 Speech audiometry revealed speech recognition ability of 100 percent both ears using the Maryland CNC Speech Discrimination Test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 18 for both ears. The examiner opined that the Veteran has normal hearing in both ears. The examiner further noted the Veteran may have hearing loss at a level that is not considered to be a disability for VA purposes. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran’s treatment records are silent regarding any complaints of hearing loss until 2014. See September 2014 Nursing Initial Evaluation Note. He indicated in his report of medical examination at enlistment and at separation that there was no hearing loss. See January 1983 Report of Medical Examination and May 1986 Report of Medical Examination. These medical records are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). While the Veteran believes he has a current diagnosis of bilateral hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The preponderance of the evidence is against finding service connection for bilateral hearing loss. There is no probative medical evidence that indicates the Veteran has a hearing impairment disability that meets the requirements of 38 C.F.R. § 3.385. As the Veteran does not have hearing loss at a level considered to be a disability for VA purposes, the claim must be denied. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Service connection for a bilateral foot disability is remanded. The Veteran contends that his bilateral foot injury is related to his active service. There are medical records consistent with a foot diagnosis. Therefore, remand is necessary to afford the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The matter is REMANDED for the following action: 1. Request the Veteran provide any service treatment records he possesses or identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his foot condition and any other orthopedic condition that may exist. All appropriate tests, studies, and consultation, must be accomplished and all clinical findings must be reported in detail. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: • Identify all currently-diagnosed acquired orthopedic diagnoses to include whether the Veteran has a foot condition, or any other orthopedic diagnosis. • Identify whether any of the Veteran’s current orthopedic diagnoses were incurred in service or caused by an in-service injury, event, or illness. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner’s attention is drawn to the following: • January 1983 Report of Medical Examination documenting the Veteran’s report of having no foot trouble. See “STR – Medical,” received November 4, 2014, page 38 of 80. • May 1986 Report of Medical Examination documenting the Veteran’s report of having no foot trouble. See “STR – Medical,” received November 4, 2014, page 12 of 80. • December 2012 Addendum documenting a diagnosis of metatarsal neuroma and the Veteran being casted due to a decrease in the medial arch height and decrease in calcaneal inclination angle. See “Medical Treat Record – Non-Government Facility,” received August 8, 2014, page 6 of 11. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. (Continued on the next page)   The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel