Citation Nr: 18151811 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-40 278 DATE: November 20, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to a rating in excess of 20 percent for varicose veins of the right lower extremity is remanded. Entitlement to a rating in excess of 20 percent for varicose veins of the left lower extremity is remanded. FINDING OF FACT Bilateral hearing loss manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to October 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for bilateral hearing loss. Beginning with direct service connection, the Veteran currently has hearing loss for VA purposes, and therefore a current disability has been established and the first element is met. 38 C.F.R. § 3.385. Concerning the second element, the Veteran has alleged that his hearing loss is due to noise exposure during active service. However, on his DD214 the Veteran’s military occupational specialty is listed as a cook, specifically a kitchen supervisor. The Veteran does not provide any specific argument regarding noise exposure during his active service and his service treatment records are silent for any complaints of hearing loss. At his separation exam in September 1970, the Veteran’s hearing was found to be normal. Therefore, an in-service event, injury, or disease has not been shown. Additionally, turning to the third element, the Veteran has reported that his hearing loss is related to service. While competent to report the persistence of lay observable symptoms, such as difficulty hearing, the Veteran is not competent to state an opinion as to whether his hearing loss is causally related to noise exposure occurring decades earlier in service, as to do so requires expertise in the field of audiology. Jandreau, 492 F.3d 1372. The Veteran did not file an application for service connection for bilateral hearing loss until August 2015, approximately 45 years after separating from service. Moreover, the Veteran did not indicate that he had any hearing loss on his September 1970 report of medical history. The Veteran had a VA examination in September 2015, wherein he was diagnosed with bilateral sensorineural hearing loss. However, the examiner opined that the Veteran’s hearing loss was less likely than not related to service because his civilian work exposed him to high impact noise, and his current hearing loss was more likely due to the natural aging process. A review of the record shows that following separation from service the Veteran worked as a truck driver, in the pharmaceutical industry, and in the steel industry. The Board finds this opinion to be well reasoned and entitled to significant weight. As the Veteran’s service treatment records do not show any complaints of hearing loss during or immediately following service. Based on the competent and credible evidence of record, the preponderance of the evidence is against a finding of a nexus between the Veteran’s bilateral hearing loss and his active duty service. As neither the second or the third element is met, service connection for bilateral hearing loss on a direct basis is not warranted. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with bilateral sensorineural hearing loss, which is encompassed by the boarder term “organic diseases of the nervous systems,” and is therefore a recognized chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, the preponderance of the evidence is against a finding of in-service hearing loss manifested to a sufficient degree so as to identify the disease or manifestation to a compensable level in the first post-service year. Service treatment records are silent for a diagnosis of bilateral hearing loss at 500 to 4000 hertz or complaints of symptoms thereof. At the Veteran’s September 1970 separation examination his hearing was not found to be impaired for VA purposes. 38 C.F.R. § 3.385. As there is no persuasive evidence of manifestation in-service or within the first post-service year, service connection for bilateral hearing loss based on the presumption in favor of chronic disease or continuity of symptomatology is not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55–57; 38 C.F.R. § 3.102. For these reasons, entitlement to service connection for bilateral hearing loss is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for varicose veins of the left and right lower extremities is remanded. The Veteran is currently rated at 20 percent for varicose veins in each lower extremity under Diagnostic Code (DC) 7120. Pursuant to DC 7120, in order to be evaluated at the higher rating of 40 percent, the Veteran must show “persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration.” The Veteran had a VA examination in August 2009, wherein he was noted to have bilateral stasis pigmentation or eczema. He had another VA examination in March 2014, wherein he was found to have intermittent edema, relieved by elevation and compression hosiery. Finally, the Veteran had a third VA examination in September 2015 wherein he was found to have persistent edema, persistent subcutaneous induration, and constant pain at rest, but neither the issue of stasis pigmentation or eczema was addressed. Accordingly, these claims must be remanded to afford the Veteran another VA examination to specifically address whether or not his persistent edema is accompanied by any other symptoms, specifically stasis pigmentation and/or eczema. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his bilateral varicose veins. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. All tests and studies, deemed necessary, including any imaging, should be conducted. The examiner should answer the following questions: (a.) Does the Veteran have persistent edema? (b.) Does the Veteran have persistent stasis pigmentation? (c.) Does the Veteran have persistent eczema? (d.) Does the Veteran have intermittent or persistent ulceration? (e.) Does the Veteran have intermittent or persistent subcutaneous induration? (f.) Does the Veteran have massive board-like edema with constant pain at rest? TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel