Citation Nr: 1806875 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 16-05 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a bilateral wrist disability. 3. Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Larry D. Schuh, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from November 1958 to June 1960. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). The Veteran testified a December 2017 Board videoconference hearing. The hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran had hazardous noise exposure in service. 2. Symptoms of bilateral hearing loss were not both chronic in service and continuous after service separation, did not manifest within one year of service separation, and are not related to in-service noise exposure. 3. The Veteran does not have a currently diagnosed bilateral wrist disability which is related to active service. 4. The Veteran does not have a currently diagnosed bilateral ankle disability which is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for service connection for a bilateral wrist disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2018). The RO issued November 2010 preadjudicatory notice to the Veteran which met the VCAA notice requirements. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the record includes service treatment records, treatment records from the Texas Department of Corrections, VA audiological examinations and opinions, and Board hearing testimony. The Board finds that VA examinations and opinions addressing bilateral hearing loss are adequate. The Veteran has not been afforded VA examinations to address claimed bilateral wrist and ankle disabilities. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, the Board notes that there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2018). With respect to the third factor above, the United States Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, absent competent and credible evidence which suggests a nexus between the claimed disabilities and service, the Board finds that a remand for a VA examination is not necessary. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2018). Service Connection Laws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Grave's disease is not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, the provisions of 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. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural 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 presumption 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. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the United States Court of Appeals for Veterans Claims (Court) indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155. 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). 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Bilateral Hearing Loss The Veteran contends that bilateral hearing loss is related to noise from artillery fire during basic training and annual training exercises, and contends that hearing loss had its onset in service. The Veteran has currently diagnosed bilateral hearing loss "disability" that meets the criteria of 38 C.F.R. § 3.385. On the VA audiological evaluation in June 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 55 75 80 LEFT 45 50 40 55 65 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 92 in the left ear. A June 2015 VA audiology consult indicates that the Veteran reported the onset of hearing loss in service, and reported being around gunfire without the use of hearing protection. On the authorized audiological evaluation in July 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 65 65 100 LEFT 50 60 55 70 90 Speech audiometry revealed speech recognition ability of 71 percent in the right ear and of 69 in the left ear. The Board finds that the Veteran experienced some degree of acoustic trauma in service. The Veteran's DD Form 214 shows that he served as a radio operator in service. However, the Veteran also described noise exposure during basic training and other training exercises, indicating that he was assigned to a strike company in service. Thus, the Board finds that the Veteran had some degree of hazardous noise exposure in service. Service treatment records show that whispered voice testing at service entrance in October 1958 was 15/15. The Veteran's separation audiograms include audiometric results reported in standards set forth by the American Standards Association (ASA). ASA standards have been reported on the left in each column and are not in parentheses. In order to facilitate data comparison, the ASA standards have been converted to International Standards Organization (ISO)-American National Standards Institute (ANSI) standards and are represented by the figures in parentheses. On the authorized audiological evaluation completed at service separation in June 1960, which the Board finds was reported under ASA standards, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) NR 5 (10) LEFT 5 (20) 5 (15) 5 (15) NR 5 (10) The Board finds that the Veteran did not Veteran experience both chronic symptoms of hearing loss in service and continuous symptoms of hearing loss after service separation. The Veteran reported in lay statements and in Board hearing testimony that he had exposure to acoustic trauma during basic training, with additional noise exposure during training in service. He reported that during basic training, he tried to use cotton in his ears, but was told not to because they would not be able to hear firing commands if they were on the firing line. He reported that no hearing protection was issued in service, and reported having difficulty hearing and reported ringing in the ears in service. He testified that hearing loss symptoms were also present at the time of his discharge from service, and reported that hearing loss continued to be present after discharge. The Veteran denied having post-service noise exposure in during Board hearing testimony. He testified that he first got his hearing tested when during a prison physical in 1995 and was found to have severe hearing loss at that time. The Veteran is competent to identify noise exposure and some contemporaneous hearing loss symptoms present in service, and finds that his testimony is credible in that regard. However, the Board finds that he is not credible in identifying both chronic symptoms of hearing loss in service and continuous symptoms of hearing loss after service separation. Texas Department of Correction, University of Texas Medical Branch Hospitals records identify a diagnosis of sensorineural hearing loss since 2005. While the Veteran reported in hearing testimony that he had no post-service noise exposure and was found to have severe hearing loss when his hearing was first tested in prison, a May 2007 audiological evaluation noted that previous audiological testing at the Texas Department of Corrections had identified "borderline hearing loss." The Veteran had also reported a history of noise exposure in the last seven to eight years, with hearing protection used now. In light of the inconsistencies shown by the medical evidence of record with the Veteran's testimony, the Board finds that he has not credibly identified both chronic and continuous hearing loss symptoms in service and post-service. Instead, the record indicates that the Veteran had a history of borderline hearing loss during an initial Texas Department of Corrections hearing examination conducted over thirty years after service separation, and he had seven or eight years of post-service noise exposure prior to his May 2007 audiological evaluation. Sensorineural hearing loss was not shown to have been manifest within one year of service separation. Finally, the weight of the evidence does not establish a nexus between currently diagnosed bilateral hearing loss and service. March 2011 and August 2017 VA opinions show that the Veteran's bilateral hearing loss was less likely than not related to service. Both examiners reviewed the record and noted that the Veteran had normal hearing thresholds bilaterally on his separation examination. The March 2011 VA examiner further noted the May 2007 report of the Veteran having borderline hearing loss in prior testing. Based on these facts, the VA examiner opined that military noise exposure did not cause the Veteran's hearing loss. The Board finds that the March 2011 VA opinion is adequate as it was based on an accurate factual background with regard to the Veteran's history of hearing loss, and the second August 2017 opinion further supports this findings. The Veteran has not otherwise submitted evidence which tends to relate current hearing loss to service. For these reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. Bilateral Wrist and Ankle Disabilities In lay statements and hearing testimony, the Veteran contends that he had wrist pain in service related to his duties as a teletype operator, and that he had ankle sprains in service due to jumping off of a tank and marching on rough terrain. In December 2017 Board hearing testimony, he reported that he had driven a tank in service and reported that there was no ladder on the tank He testified that when jumping off of the tank, you would sprain your ankle, and he reported that he would sprain his ankle most of the time and reported that everyone else did the same thing. When asked if he sought medical treatment in service for his ankle, the Veteran reported that he and other service members would buy ACE bandages to put around the ankles before going out. Service treatment records, to include a June 1960 separation examination, do not identify any treatment, diagnoses, or complaints related to either the ankles or wrists. The Board finds that while the Veteran reported that he "sprained" his ankle every time he exited and jumped off of a tank in service, it appears, based on hearing testimony, that he was describing pain in the ankles with these jumps, as he was never formally diagnosed with an ankle sprain in service and did not indicate that need for treatment other than the use of an ACE wrap to prevent injury. The Board finds that the Veteran is credible in reporting ankle pain in service concurrent with jumping out of a tank, but is not competent to report that he sustained multiple sprains of both ankles absent any treatment or diagnosis for ankle sprains in service. Similarly, the Board finds that the Veteran is credible in his testimony reporting wrist pain during teletype school in service. However, insomuch as he contends that wrist and ankle pain have been present since service, absent any treatment for bilateral ankle or wrist pain post-service or currently, and in light of inconsistencies in his testimony with regard to his history of hearing loss and with findings in the medial record as the Board previously discussed, the Board finds that the Veteran's statements regarding the continuity of his pain symptoms are not credible. Post-service treatment records from the Texas Department of Correction, University of Texas Medical Branch Hospitals dated from 2001 are of record. The Veteran has not otherwise identified treatment for his wrists or ankles after service separation. Treatment records from the Texas Department of Correction do not identify any current treatment, diagnoses, or complaints related to the bilateral wrists or the right ankle. Texas Department of Correction records show that in October 2009, the Veteran tripped and fell, fracturing his left ankle. Earlier left ankle complaints were not indicated by the record, and the record did not identify any history of ankle sprains. Accordingly, the Board finds that current medical evidence does not identify a current bilateral wrist or bilateral ankle disability that may be related to the Veteran's duties as a teletype operator in service, or ankle pain reported in service. Instead, the record shows that the Veteran had a right ankle fracture post-service in October 2009 due to a contemporaneous injury. Absent evidence of a current bilateral wrist or bilateral ankle disability, aside from the post-service fracture, and absent competent, credible, and probative evidence a nexus between such disability and service, the Board finds that service connection is not warranted. For these reasons, the Board finds that the weight of the evidence is against the claim for service connection a bilateral wrist disability and a bilateral ankle disability and the appeal is denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claims. ORDER Service connection for bilateral hearing loss is denied. Service connection for a bilateral wrist disability is denied. Service connection for a bilateral ankle disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs