Citation Nr: 19128917 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 13-32 834 DATE: April 16, 2019 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for a gastrointestinal disability is denied. FINDINGS OF FACT 1. The Veteran does not have a current right ear hearing loss disability. 2. The Veteran does not have a current chronic gastrointestinal disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for a gastrointestinal disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.102. 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from September 1974 to April 1987 and from February 1991 to July 1991. He was ordered to active duty to Dhahran/Kuwait in support of Operation Desert Storm for a period of 33 days plus travel time from August 1993 to October 1993. See AF Form 938. He also has service in the Air Force Reserve. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Board remanded the Veteran’s claims for additional development. In the June 2015 Board decision, the issue of entitlement to service connection for an acquired psychiatric disorder and entitlement to service connection for left ear hearing loss were also remanded for additional development. In a November 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for an acquired psychiatric disorder and assigned an initial 30 percent rating effective June 9, 2011, and service connection for left ear hearing loss and assigned an initial noncompensable rating effective June 9, 2011. The grants of service connection for an acquired psychiatric disorder and left ear hearing loss in the November 2016 rating decision represent a complete grant of the benefits sought on appeal with respect to those claims. Therefore, those issues are no longer before the Board. Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for certain chronic diseases, including hearing loss, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309 (2018). When chronic diseases are at issue, the second and third elements for service connection may alternatively be established by showing continuity of symptomatology. See Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Right Ear Hearing Loss Historically, the Veteran submitted a claim for entitlement to service connection for hearing loss in June 2011. The claim was denied in a May 2012 rating decision from which the Veteran appealed. 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. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran’s service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). A review of the Veteran’s service treatment reports (STRs) reflects that a March 1974 examination included audiometric testing which revealed puretone thresholds of 10, 10, 0, and 0 decibels in the right ear, at 500, 1000, 2000, and 4000 Hertz. A January 1987 examination revealed puretone thresholds of 10, 10, 5, 20, and 15 decibels in the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz, and 5, 5, 10, 10, and 15 decibels for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. An audiogram dated in June 1984 revealed puretone thresholds of 10, 5, 5, 5, and 5 decibels in the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. A July 1990 reserve enlistment examination included an audiogram which revealed puretone thresholds of 10, 5, 5, 10, and 10 decibels in the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. A November 1991 periodic examination included audiometric testing which revealed puretone thresholds of 10, 10, 5, 20, and 15 decibels for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. An October 1992 periodic examination included an audiogram which revealed puretone thresholds of 10, 10, 5, 15, and 0 decibels in the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. A February 1999 examination included an audiogram which revealed puretone thresholds of 20, 5, 0, 10, and 10 decibels for the right ear at 500, 1000, 2000, 3000, and 4000 Hertz. The Veteran denied hearing loss on various report of medical history forms. Post-service VA outpatient treatment reports reflect a report of hearing loss in January 2012. No audiometric testing was included in the reports. At a January 2012 VA audiological examination, the Veteran reported exposure to live-running aircraft and aircraft maintenance equipment as well as exposure to various weaponry during service. Audiometric testing revealed puretone thresholds of 15, 10, 10, 20, and 15 decibels in the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. The speech recognition score was 100 percent in the right ear. The examiner diagnosed the Veteran with right ear sensorineural hearing loss in the frequency range of 6000 Hertz or higher frequencies. The examiner opined that the Veteran’s hearing loss was less likely as not related to service because he left service with normal hearing and developed hearing loss after he left service. The diagnosis of sensorineural hearing loss in the frequencies of 6000 Hertz or higher reveals impaired hearing that does not meet the criteria for a disability for VA purposes. At a November 2016 VA audiological examination, the Veteran reported exposure to live-running aircraft and aircraft maintenance equipment as well as exposure to various weaponry and explosives during service with the occasional use of hearing protection. Audiometric testing revealed puretone thresholds of 15, 15, 5, 20, and 20 decibels in the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. The speech recognition score was 98 percent in the right ear. The examiner diagnosed the Veteran with right ear sensorineural hearing loss in the frequency range of 6000 Hertz or higher frequencies and significant changes in hearing thresholds in service. The examiner opined that the Veteran’s hearing loss was at least as likely as not related to service because there were significant in-service threshold changes present at 4000 and 6000 Hertz. The examiner noted that the Veteran’s report of onset of hearing loss, audiometric configuration, and significant in-service threshold shift was consistent with noise-inducted hearing loss. The Board notes that a diagnosis of sensorineural hearing loss in the frequencies of 6000 Hertz or higher does not meet the criteria for a disability for VA purposes. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for right ear hearing loss. The Veteran’s right ear hearing thresholds did not meet the criteria for hearing loss pursuant to VA regulations at any time during service or since that time. As such, there is no medical evidence showing that hearing loss was diagnosed for VA purposes either during service or within a year of service. To the extent the Veteran would be competent to report diminished hearing acuity, he would not be competent to diagnose hearing loss for VA purposes as such a determination would require both objective audiometric and speech recognition testing, which the Veteran could not perform on himself. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, there is no evidence of the Veteran having met the criteria for a compensable rating for hearing loss within one year after service. 38 C.F.R. §§ 3.307, 3.309. The Board acknowledges that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. As such, the Veteran is considered competent to describe his perception of diminished hearing acuity. Although he has provided lay evidence that he was exposed to military noise during service and experiences decreased hearing acuity, the record contains no competent evidence of a current hearing loss disability. The Board acknowledges that the November 2016 VA examiner determined that the Veteran had right ear sensorineural hearing loss in the frequency range of 6000 Hertz or higher frequencies and opined that the Veteran’s hearing loss was at least as likely as not related to service due to military noise. However, the diagnosis of sensorineural hearing loss in the frequencies of 6000 Hertz or higher does not meet the criteria for a disability for VA purposes. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for right ear hearing loss and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. Gastrointestinal Disability Historically, the Veteran submitted a claim for entitlement to service connection for a gastrointestinal disorder in June 2011. The claim was denied in a May 2012 rating decision from which the Veteran appealed. Regulations provide that compensation may be paid to any Persian Gulf War veteran “suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses).” 38 U.S.C. § 1117. These may include, but are not limited to, muscle pain, joint pain, neurologic signs or symptoms, and symptoms involving the respiratory system. See 38 C.F.R. § 3.317(b). The chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2016, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Id. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome (CFS); (2) fibromyalgia; (3) irritable bowel syndrome (IBS);or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a m medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). To date, VA has not identified any other medically unexplained chronic multi-symptom illnesses for purposes of 38 C.F.R. § 3.317. A review of the Veteran’s STRs reveals that he was seen for a report of pain in his stomach, diarrhea, a bloated feeling, and headaches in February 1984. He reported vomiting once. He indicated that he ate a cheese dog at a snack bar in a bowling alley two days prior. The examiner noted that his symptoms were due to a questionable food borne source. He was assessed with gastroenteritis in August 1986. Post-service VA outpatient treatment reports reflect that in March 2012, the Veteran denied nausea, vomiting, diarrhea, constipation, and abdominal pain. No diagnosis of a gastrointestinal disorder was noted. In June 2012, the Veteran reported regular bowel movements and he denied diarrhea. In November 2015, he endorsed occasional diarrhea and he denied reflux, abdominal pain, nausea, vomiting, and constipation. No gastrointestinal disorder was diagnosed. In May 2016, he denied diarrhea and constipation. At a February 2012 VA Gulf War examination, the Veteran reported a past medical history of an intestinal condition. Physical examination was reported to be normal. The Veteran did not have any additional signs or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptoms illness. At a VA intestinal conditions examination in February 2012, the examiner indicated that the Veteran did not have any intestinal conditions, nor did he take any medication for an intestinal condition. The Veteran reported that he moved his bowels twice a day for the past twenty years and he denied any other significant complaints. He had not undergone any work ups or procedures and he denied melena and blood in his stools. The Veteran denied signs and symptoms attributable to an intestinal condition including diarrhea, alternating diarrhea and constipation, abdominal distension, anemia, nausea, and vomiting. He also denied episodes of bowel disturbance with abdominal distress or exacerbations or attacks of an intestinal condition. And he denied weight loss, malnutrition, serious complications, or any other general health effects attributable to an intestinal condition. The examiner concluded that the Veteran had no significant intestinal or stomach diseases. At a November 2016 VA examination, the Veteran reported that he had diarrhea all the time (80 percent of the time) and loose stools since the 1990s. He indicated that when he stools there is a sickly smell as if he vomited. He endorsed left lower side abdominal cramps for three days which comes and goes occurring one to two times a year which does not necessitate medical intervention. The examiner interviewed the Veteran, reviewed the Veteran’s claims file and noted the relevant medical history, and conducted a physical evaluation. The examiner concluded that there was no objective evidence of a gastrointestinal condition. The examiner noted that the Veteran did not have any physical findings, complications, conditions, signs, or symptoms related to a gastrointestinal disorder. The examiner opined that it was less likely than not that the Veteran had a diagnosis of a gastrointestinal disorder incurred in or caused by service. The examiner’s rationale was that the Veteran was treated for gastroenteritis twice during service which was acute and transitory and resolved in a few days. The subsequent STRs did not show chronic diarrhea or gastrointestinal trouble. There was also no chronicity of a gastrointestinal condition following service as there were no treatment records to document such a diagnosis. The examiner also concluded that the claimed gastrointestinal disorder was less likely than not an undiagnosed illness with no clear etiology or a medically unexplained chronic multi-symptom illness of unknown etiology and was less likely than not related to a specific exposure event during the Veteran’s service in Desert Storm. The examiner’s rationale was that the STRs documented only two episodes of acute gastroenteritis with no post-service treatment for a gastrointestinal condition during or after service. The examiner noted that the gastroenteritis in service was acute and transitory and resolved in a few days as noted previously. Moreover, acute gastroenteritis is a condition with a specific diagnosis and is not an undiagnosed illness due to service in Desert Storm. The examiner concluded that the Veteran’s examination does not support the claimed gastrointestinal disorder. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for a gastrointestinal disorder. The Board acknowledges that the Veteran is competent to report that the symptoms he attributes to a gastrointestinal disorder. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). It is within the Veteran’s realm of personal knowledge whether he experienced diarrhea or other gastrointestinal symptoms. However, in all claims for service connection, the threshold requirement is evidence of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The VA treatment records do not reflect a diagnosis of a gastrointestinal disability. Additionally, when examined by VA on multiple occasions, the examiners determined that the Veteran did not have a gastrointestinal disability was not rendered. Consequently, the objective findings do not support a diagnosis of a current gastrointestinal disability. As a result, the Board has considered the Veteran’s entitlement to service connection for a gastrointestinal disability under 38 C.F.R. § 3.317. However, multiple VA examiners have expressly concluded that the Veteran did not exhibit any objective gastrointestinal disability. In addition, although the Veteran reported diarrhea “almost all the time” at the most recent VA examination, the post-service treatment reports do not substantiate this finding. The Board acknowledges that the Veteran reported diarrhea on occasion after service. However, at no time was a gastrointestinal disability diagnosed nor has the Veteran sought any medical testing to determine whether he has a gastrointestinal disorder. Thus, the Board concludes that the most probative evidence reflects no objective indications of a chronic disability. Indeed, two VA examiners expressly indicated that the Veteran exhibited no pertinent physical findings, complications, conditions, signs, or symptoms of a chronic gastrointestinal disability. The Board finds that the examiners’ opinions are highly probative, as they were based on an examination of the Veteran, a review of his claims file, detailed consideration of his medical history and reported symptoms, and included a rationale for the conclusions reached. There is no other clinical evidence of record which contradicts the examiners’ conclusions or otherwise directly addresses the question at issue in this case. In summary, absent probative evidence of an undiagnosed illness established by objective indications of chronic disability, a medically unexplained chronic multisymptom illness, or a functional gastrointestinal disorder, service connection for a gastrointestinal disability under 38 C.F.R. § 3.317 is not warranted. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim for service connection for a gastrointestinal disorder is denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel