Citation Nr: 19166337 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 14-20 508A DATE: August 27, 2019 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for postphlebitic syndrome is remanded. FINDINGS OF FACT The Veteran does not have a current disability of bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385. CONCLUSIONS OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to September 1987, from August 1997 to April 1998, from January 2004 to December 2004, from June 2006 to June 2007 and from June 2009 to October 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2011 and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran and his wife testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In an October 2011 rating decision, the RO, in pertinent part, denied entitlement to service connection for the Veteran’s claimed hearing loss disability. In January 2018, the Board remanded that issue to the RO for the Veteran to undergo a new VA examination. In May 2018, the Veteran underwent a new VA examination for hearing loss. As the RO substantially complied with the January 2018 remand directive, the Board may proceed with adjudicating this issue. Stegall v. West, 11 Vet. App. 268 (1998). In a July 2015 rating decision, the RO, in pertinent part, denied entitlement to service connection for postphlebitic syndrome. In March 2019, the Board remanded that issue for the RO to obtain the Veteran’s VA treatment records and for Veteran to undergo a new VA examination. The record reflects that the Veteran’s VA treatment records have been obtained and associated with the claims file, but that Veteran has not yet undergone a new VA examination for this disability. As the RO did not substantially comply with all of the Board’s remand directives, another remand is required for the Veteran to undergo a VA examination. Stegall. 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss. He asserts he has hearing loss as a result of his noise exposure during service. The Veteran has been deployed several times and has reported being constantly exposed to loud noises since he served in infantry and artillery positions. 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. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). For the showing of a 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. Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b) (2018). Service connection may also 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) (2018). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). In this case, organic diseases of the nervous system, including hearing loss and tinnitus, are listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) potentially applies. 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. For the showing of a “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. With chronic diseases in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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). 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, 1000, 2000, 3000, or 4000 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. The Veteran underwent a VA examination in July 2011. The examiner reported speech discrimination score on the Maryland CNC of 96 percent in the right ear and 98 percent in the left ear as well as auditory thresholds of 15 decibels or less in frequencies of 500, 1000, 2000, 3000, or 4000 Hertz. The Board notes that while the results of the July 2011 VA examination reflected that the Veteran did not have hearing loss in either ear as defined in 38 C.F.R. § 3.385, the Veteran reported subjective tinnitus on the July 2011 VA examination. The Board notes that the Veteran has been service connected for tinnitus. The Veteran attended another VA examination in May 2018 to determine whether he had hearing loss related to his service. The examiner reported speech discrimination score on the Maryland CNC of 96 percent bilaterally as well as auditory thresholds in the 500, 1000, 2000, 3000, and 4000 Hertz frequencies at 20 decibels or below. The May 2018 VA examination did show evidence of hearing loss at 6000 and 8000 Hertz frequencies in the Veteran’s left ear. However, for VA disability purposes, a hearing loss disability exists only if there is evidence of hearing loss in the 500, 1000, 2000, 3000, or 4000 Hertz frequencies. The VA examination reflected that the Veteran did not have hearing loss in either ear as defined by 38 C.F.R. § 3.385. Similarly, while the Veteran’s Service Treatment Records (STRs) reflect complaints of hearing loss, and the Veteran was given several audiograms, the in-service tests do not show that the Veteran had a hearing loss disability as defined by 38 C.F.R. § 3.385 while in service. Rather, the audiograms sometimes reflected some hearing above the 20 decibel threshold, generally at the 6000 or 8000 hertz frequency. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (explaining that the threshold for normal hearing is from zero to 20 decibels). Unfortunately, these are not frequencies contemplated under 38 C.F.R. § 3.385 and even considering this evidence, the record does not reflect hearing loss for VA purposes while in service. After separating from active duty service, in January 2016 and April 2016, the Veteran underwent audiograms which showed normal hearing. In summary, there is no competent medical evidence that indicates that the Veteran has a current hearing loss disability in either ear that meets VA disability criteria. The Veteran is competent to report symptoms of hearing loss that he may experience as a layperson, and the Board acknowledges that his May 2018 VA examination shows evidence of hearing loss at high frequencies, and that he reports that his family has said he’s not listening when he cannot hear what they are saying while having conversations at normal volumes. The Veteran’s wife also testified that she noticed that his hearing loss began during service and has continued ever since. However, there is no evidence in the record that the Veteran or his wife are competent to diagnose a bilateral hearing loss disability because hearing loss is identified by objective and specific audiometric and speech recognition testing. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he has personal knowledge); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not demonstrated he has the knowledge, education or training to provide an opinion in such a complicated matter and therefore his opinion as to a diagnosis of hearing loss is not competent evidence. Id. While the Veteran is competent to testify to continuity of symptoms of hearing loss, the Veteran’s senses cannot provide an accurate gauge of when his hearing loss would meet the VA standard for disability. The evidence provided by the 2011 and 2018 VA audiometric testing outweighs the Veteran’s opinion in this area and demonstrates that the Veteran’s current hearing loss in either ear does not currently meet the VA standards for disability. As such, the Veteran’s claim for service connection for a bilateral hearing loss disability cannot currently be granted, as the initial criterion for service connection has not been met. As such, the Board finds that the preponderance of the evidence is against the claim for a hearing loss disability of either ear. Consequently, because a preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for a bilateral hearing loss disability is denied. See 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for postphlebitic syndrome is remanded. The Veteran is claiming entitlement to service connection for postphlebitic syndrome. In March 2019, the Board remanded this issue and directed the RO to schedule the Veteran for VA examination. The record reflects that the Veteran has not undergone a VA examination after the March 2019 remand for this disability, and, therefore, another remand is required for the RO to schedule the Veteran for a VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any postphlebitic syndrome. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine whether any diagnosed postphlebitic syndrome at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.