Citation Nr: 18106982 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-02 735 DATE: June 1, 2018 ORDER Entitlement to service connection for right thumb degenerative joint disease is granted. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. The evidence is at least in relative equipoise that the Veteran’s degenerative joint disease of the right thumb is related to active duty service. 2. The probative, competent evidence is against a finding that the Veteran’s left ear hearing loss is related to active duty service. 3. The probative, competent evidence is against a finding that the Veteran has a right ear hearing loss disability for service connection purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative joint disease of the right thumb have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. 3. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active duty service in the United States Navy from March 1986 to December 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has obtained the Veteran’s VA treatment records, but the Veteran has asserted in written statements that he has not sought medical treatment for the issues on appeal. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis and organic diseases of the nervous system such as sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Degenerative joint disease of the right thumb The Veteran asserts that he injured his right hand during service and that he has had ongoing pain since then. Specifically, he reported that he sought treatment for a finger injury and that he had a cast during service but still has continued pain symptoms. The Veteran has been diagnosed with degenerative joint disease of the first CMC joint of the right hand during the course of the appeal. Therefore the Board finds that there is a current disability for service connection purposes. As it pertains to an in-service event or injury, the Board notes that in October 1987 the Veteran sought treatment at the orthopedic clinic for a tendon injury in the right hand; at the time he was placed in a cast and there was some swelling, although there was no fracture. He requested pain medication for his symptoms, and he was diagnosed with tendonitis. In April 1988 the Veteran again sought treatment complaining of trauma to the right thumb while playing basketball. He reported that he had increased pain on exertion, and the treatment provider indicated that the Veteran had been seen for this problem before. The treatment provider indicated that the Veteran had possible tendonitis, and he was sent for an x-ray. Although the Veteran’s separation examination was normal, he reported having a broken bone in the right hand in his Report of Medical History at separation. Given these findings, the Board has determined there is an in-service event or injury for service connection purposes. As it pertains to a nexus between the Veteran’s current disability and active duty service, the Board notes that the Veteran underwent VA examination in connection with his claim in April 2012. At the time he was diagnosed with right degenerative joint disease of the first CMC joint in the right hand. The Veteran told the VA examiner that he injured his right thumb while lifting heavy objects during service, and that he may have been diagnosed with a broken bone, but that he was placed in a cast. He indicated that his right thumb has been uncomfortable since service, and that the pain had worsened. The Veteran indicated that he had self-treated this injury and had not received other medical treatment. On physical examination the Veteran had a reduced range of motion with pain in the right thumb. His right hand x-ray showed degenerative changes of the first CMC joint. At the conclusion of the VA examination the VA examiner opined that he could not resolve the issue without resort to mere speculation because while the service medical records reported that the Veteran sustained blunt trauma while playing basketball, the separation examination was normal, and there was no further evidence of a right thumb disability until the present examination. There was no evidence of treatment in the record after this time. Upon review the Board finds that the evidence is at least in relative equipoise as to whether there is a nexus between the Veteran’s current right finger disability and active duty service. It is clear from the service treatment records that the Veteran injured his fingers twice during active duty service, and it is clear from the VA examination that he currently has degenerative joint disease in the right hand. The Board notes that the VA examiner could not offer an opinion without resorting to speculation, which is not necessarily a negative opinion. The Veteran is competent to report his symptoms, and he has credibly reported that his right finger disability pain has persisted since service. There is no evidence to suggest that there was an intervening or alternative etiology for his right finger disability. In viewing the totality of the record and in giving the Veteran the benefit of the doubt, the Board finds that the evidence is sufficient to support a nexus between the current disability and active duty service. Therefore, service connection is warranted. 38 C.F.R. § 3.102. 2. Left ear hearing loss The Veteran has asserted that his hearing loss stems from acoustic trauma due to working around aircraft. He indicated that his military occupational specialty as an aircraft maintenance technician was one that had highly probable noise exposure. The Veteran also contends that he was told he has a 15 percent loss of hearing at separation from service, which encouraged him to leave the service with a waiver. As it pertains to a current disability, the Veteran has been diagnosed during the course of the appeal with left ear sensorineural hearing loss. Therefore, the Board finds that there is a current disability for service connection purposes. As it pertains to an in-service event or injury, the Board notes that the treatment records are silent for any treatment for, or symptoms of, hearing loss. The Veteran’s audiometric testing at separation from service showed normal hearing in both ears. Likewise, there was no indication of hearing loss deficits in the separation examination or in his Report of Medical History at separation. Nonetheless, as stated the Veteran was serving as an aircraft maintenance technician and his exposure to acoustic trauma is conceded based on the circumstances of his service. As it pertains to a nexus between the Veteran’s current left ear hearing loss and active duty service, the Board finds that the evidence is against his claim. In April 2012 the Veteran underwent VA examination in connection with his claim. At the time audiometric testing was performed which revealed the following results HERTZ 500 1000 2000 3000 4000 LEFT 25 15 10 35 50 His speech discrimination in the left ear was 100 percent. The tests were considered valid, and he was diagnosed with left ear sensorineural hearing loss. At the conclusion of the examination, the VA examiner opined that it was less likely than not that the Veteran’s hearing loss was related to in-service noise exposure. In making this determination the VA examiner noted that the Veteran’s hearing at separation from service was normal with no significant shift in hearing levels between entrance and separation from service. The VA examiner also cited a study from the Institute of Medicine that found that there was no evidence to support delayed onset hearing loss. In viewing the totality of the evidence, the Board finds that it is insufficient for a nexus between the Veteran’s current left ear hearing loss and active duty service. As noted by the examiner there was no significant shift in the Veteran’s hearing between entrance and separation from service, and his first record of hearing loss after separation from service was the April 2012 VA examination, which was approximately 21 years later. The Board assigns great weight to the VA examiner’s opinion because it is based on a review of the claims file as well as audiological testing of the Veteran. There has been no evidence submitted to the contrary. While the Veteran believes that his current left ear hearing loss is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hearing loss are matters not capable of lay observation, and require medical expertise to determine. The Veteran has asserted that he is competent to describe his symptoms of hearing loss, and the Board agrees. However, the Board finds he is not competent to testify to the etiology of his hearing loss. Accordingly, his opinion as to the diagnosis or etiology of his left ear hearing loss is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s own opinion regarding the etiology of his current left ear hearing loss is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However as the preponderance of the evidence is against the claim, that doctrine is not applicable in this instance. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Right ear hearing loss As noted, the Veteran asserted that his right ear hearing loss is due to his in-service noise exposure while working on aircraft as a mechanic, and while working on flight decks while aboard an aircraft carrier. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When the Veteran’s hearing was tested at separation from service, the following results were recorded. HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 20 20 In April 2012 the Veteran underwent VA examination in connection with his claim. The examiner reviewed the claims file and medical history, and noted the Veteran’s in-service noise exposure. Puretone threshold and Maryland CNC speech recognitions tests were also conducted. Audiometric testing revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 20 20 The Veteran’s speech recognition ability was 100 percent in the right ear. The VA examiner indicated that these test results reflected normal hearing in the right ear. Additionally, the Board has reviewed the Veteran’s service treatment records, which contain other audiological testing conducted during the Veteran’s active duty. Upon review, the Board finds that no audiological examination of record conducted at any time demonstrates an auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz of 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test less than 94 percent. Auditory thresholds, at worst, were 20 decibels in the left ear. No more than two auditory thresholds were above 26 decibels at any time. The evidence in this case reflects that the Veteran does not currently have a right ear hearing loss disability for VA purposes. As described, audiometric testing revealed that the Veteran had no auditory thresholds at any relevant frequency above 35 decibels, that he had no more than two auditory thresholds above 26 decibels at any given time, and that his Maryland CNC tests reflected scores of at least 94 percent in the left ear. These results do not reflect that the Veteran has a right ear hearing loss disability as established by 38 C.F.R. § 3.385. The Veteran has not challenged the accuracy of any of the audiometric results and has not submitted any additional evidence in support of his claim that his reported hearing loss meets the threshold requirements set out by 38 C.F.R. § 3.385. While the Veteran is competent to report what comes to him through his senses, including diminished hearing capacity, he is not competent to assess that he has a hearing loss disability for VA purposes. See Layno v. Brown, 6 Vet. App. 465 (1994). Such determination may only be made by audiometric testing and CNC Word List speech recognition testing. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In summary, the Board finds that evidence of a present disability has not been presented in the case of the Veteran’s reported right ear hearing loss; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is also no competent evidence of a right ear hearing loss disability for VA purposes at any point during the claims period or shortly before. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Given the above, the Veteran’s claim for entitlement to service connection for right ear hearing loss is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel