Citation Nr: 18156380 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 15-10 815 DATE: December 11, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. In a February 2016 statement, the Veteran withdrew the pending appeal of the claim of entitlement to service connection for PTSD. 2. Bilateral hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited within the first post-service year. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the pending appeal of the claim of entitlement to service connection for PTSD are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria of entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to May 1977. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to service connection for bilateral hearing loss and PTSD. The Veteran disagreed with the denials and a statement of the case (SOC) was issued in March 2015; he subsequently perfected a timely appeal. The March 2015 SOC also denied service connection for tinnitus and erectile dysfunction. The Veteran perfected timely appeals of these claims in March 2015. In a November 2015 rating decision, service connection was granted for erectile dysfunction and a noncompensable rating was assigned. In a January 2016 rating decision, service connection was granted for tinnitus and a 10 percent rating was assigned. To the Board’s knowledge, the Veteran has not disagreed with those decisions; said matters have accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). 1. Entitlement to service connection for PTSD. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a). Appeals may be withdrawn on the record at a hearing or in writing. 38 C.F.R. § 20.204(b)(1). In a February 2016 statement, the Veteran expressed his desire to withdraw the pending appeal of the issue of entitlement to service connection for PTSD. The written withdrawal of the issue is explicit and unambiguous and done with a full understanding of the consequences of such action. The Veteran’s statement clearly indicates that he did not wish to pursue PTSD any further and asked that the appeal of the issue be removed. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); 38 C.F.R. § 20.204 (2017); see also Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, no allegations of errors of fact or law remain for appellate consideration with respect to said claim. Accordingly, the Board does not have jurisdiction to review the appeal as to this matter, and it must be dismissed. 2. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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 active service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection on a direct basis, the record must contain competent evidence of (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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain enumerated diseases will be service connected on a presumptive basis if they manifested to a compensable degree within one year after active duty service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A nexus between the current disability and service may be established by evidence of continuity of symptomatology since service for a listed chronic disability. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). VA deems sensorineural hearing loss to be an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). See Veterans Benefits Administration (VBA) Fast Letter 10-02 (Mar. 18, 2010); Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. Although the Walker case did not expressly address this issue, the Board will deem sensorineural hearing loss as a “chronic” disease for purposes of this decision. 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). For the 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, 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. Service connection will be granted for a hearing loss disability where the evidence establishes a nexus between the current hearing loss and a disease or injury suffered while in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, 5 Vet. App. at 159. In rendering a decision on 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. In this matter, the Veteran contends that his bilateral hearing loss began during his active military service. For the reasons set forth below, the Board concludes that service connection is not warranted. It is undisputed that the Veteran has been found to have current bilateral hearing impairment for VA compensation purposes. See, e.g., the VA examination report dated December 2015. The Veteran’s service treatment records (STRs) include in-service audiological testing completed at the June 1970 induction examination. Because it is unclear from the examination report itself whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board has considered the recorded metrics under both standards for purposes of considering if one-unit measurement results are more favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 Add 15 15 10 10 10 5 The June 1970 audiometric results are reflected in the record as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 0 0 X 0 LEFT 10 0 0 X 0 When the Veteran's June 1970 audiometric results are converted to the current ISO standard, they are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 10 10 X 5 LEFT 25 10 10 X 5 (As set forth below, neither version of the test results produce a favorable outcome. Both versions reflect hearing acuity which does not rise to the level of disability for purposes of 38 C.F.R. § 3.385). The Veteran’s October 1976 separation examination, which post-dated the necessity to convert from ASA units, revealed the following audiometric findings: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 15 20 20 LEFT 20 10 25 25 15 Additionally, the Veteran’s STRs document treatment for a right ear infection in September 1971 and January 1972; he was prescribed antibiotics. A June 1972 notation indicated that the Veteran sought treatment for a scratch to the left ear. In-service noise exposure was conceded by the RO based on the Veteran’s military occupational specialty (MOS) of security specialist during his service in the Republic of Vietnam. See the statement of the case (SOC) dated March 2015; see also the rating decision dated January 2016. Thus, the crucial question in this matter is whether such noise exposure resulted in bilateral hearing loss. The Veteran has neither identified nor submitted any post-service treatment records to demonstrate hearing loss at any time prior to his December 2015 VA examination. Thus, there is no competent medical evidence that bilateral sensorineural hearing loss manifested to a compensable degree within one year of the Veteran’s discharge from active service. 38 C.F.R. § 3.307, 3.309. The Veteran was afforded a VA audiological examination in December 2015 at which time he reported a history of unprotected noise exposure from active combat and airplane engines. His civilian noise exposure was minimal. The examiner stated, that the Veteran’s bilateral hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner explained, “[u]pon enlistment and separation hearing was within normal limits. The variations of patient response: It is commonly accepted that variations of pure tone responses do not always reflect changes in hearing.” The examiner continued, “[v]ariations in testing can also be consistent with the human’s auditory inability to maintain a loudness reference, patient attention factors, environmental room noise and equipment issues. Therefore, minimal pure tone difference when comparing entry and exit hearing tests do not always reflect hearing loss.” The examiner further noted that the “Veteran did have ear infections during service, which can temporarily cause hearing issues.” The examiner stated, “[w]ith normal hearing at separation this documents a delayed onset. The hearing loss seen today barely meets criteria for disability and DOES NOT reflect an onset of 38 years ago.” The examiner additionally cited the 2006 Institute of Medicine report ‘Noise and Military Service-Implications for Hearing Loss and Tinnitus,’ in support of her conclusions. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant’s medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez, 22 Vet. App. at 295. As detailed above, the findings of the December 2015 VA examiner were thoroughly explained and fully supported by the evidence of record. The examiner’s opinion was based on a review of the record, including the lay statements, pertinent medical literature, and thoughtful analysis of the Veteran’s entire history. The Board therefore places significant weight on the findings of the December 2015 VA examiner. See Nieves-Rodriguez, 22 Vet. App. at 295 (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion); see also 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”). Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the currently diagnosed bilateral hearing loss and the Veteran’s military service outweighs the medical evidence suggestive of a nexus. The Veteran has not produced a medical opinion to contradict the conclusions set forth in the December 2015 VA medical opinion. The Veteran has been afforded ample opportunity to present competent medical evidence in support of his bilateral hearing loss claim. He has not done so. See 38 U.S.C. § 5107(a) (it is the claimant’s responsibility to support a claim for VA benefits). Thus, the December 2015 VA medical opinion stands unchallenged as competent medical evidence on the crucial question of medical nexus. The Board has carefully considered the contentions of the Veteran that he suffers bilateral hearing loss, which was incurred during his military service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran’s assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran’s lay theory regarding the etiology of his bilateral hearing loss is contradicted by the conclusion of the December 2015 VA examiner who specifically considered the Veteran’s lay statements in rendering his negative opinion. The Board finds the specific, reasoned opinion of the trained health care provider who conducted provided the December 2015 medical opinion to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Crucially, however, the Veteran’s contentions in support of service connection, including continuing post-service hearing loss symptomatology are contradicted by the findings of the December 2015 VA examiner who specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinion. Considering the overall evidence, including the post-service medical evidence, the VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran’s contention that he suffers from bilateral hearing loss related to his military service. Thus, the benefit-of-the-doubt rule is not applicable to the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel