Citation Nr: 20002012 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 15-39 605 DATE: January 9, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss is not attributable to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to May 1969. The Veteran testified before the undersigned at a November 2019 Board hearing. A transcript is of record. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Bilateral hearing loss The Veteran filed a December 2010 claim for service connection for hearing loss. See December 2010 VA Form 21-526b. He contends that his hearing loss is due to noise exposure in service. In a December 2010 statement in support of claim, the Veteran reported that he was constantly exposed to artillery firing in service. In a January 2011 correspondence, the Veteran reported that he was cross-trained as a photographer and served in Vietnam from February 1966 to March 1967 as a “Combat Photographer.” He reported engaging in firefights with grenades, machines guns, rifles, mortars, and artillery shells firing and exploding close by with no hearing protection. See January 2011 correspondence. He also reported that from October 1967 to May 1969 he volunteered as an aerial observer and the engines from the aircraft were only a few feet from the cockpit and he underwent mortar and rocket barrages all night long. Id. The first and second Shedden elements are met and not in dispute. Veteran has a current bilateral hearing loss disability for VA purposes. See May 2011 VA examination report. Further, the Board notes that service connection has been granted for tinnitus; thus, noise exposure in service is conceded. Finally, regarding the third Shedden element, the May 2011 VA examiner opined that based on the Institute of Medicine report (Noise and Military Service, September 2005) which concluded that bases on current knowledge, noise induced hearing loss occurs immediately (no scientific support for delayed onset NIHL weeks, months, or years after the exposure event) and given normal hearing was documented at separation, it is less likely as not that the hearing loss is related to military noise exposure. The May 2011 VA examination was based on upon thorough review of the record, analysis of the Veteran’s entire history, and supported by medical literature. See 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”]. The Veteran has not submitted a medical opinion to contradict the VA examiner’s opinion that his current bilateral hearing loss disability is not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. The Board acknowledges the Veteran’s reports that his hearing loss disability began in service. While the Veteran is competent to report that hearing difficulty; however, he has not been shown to be competent to provide a diagnosis of a hearing loss disability for VA purposes and is not competent to provide an etiological opinion in this matter. The Board finds that the clinical evidence of record is more probative than the lay statements. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of hearing loss, hearing acuity thresholds, and hearing loss disability for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND TDIU The Veteran is service-connected for PTSD rated 50 percent, from December 10, 2010; tinnitus rated 10 percent from December 10, 2010; right knee status post total knee replacement rated10 percent from November 18, 1975, rated 100 percent from January 14, 2019, rated 100 percent from March 1, 2020, and rated 30 percent from March 1, 2020; right elbow disability rated 10 percent from November 18, 1975; right forefinger disability rated noncompensable from November 18, 1975; right index finger rated noncompensable from July 9, 2012; and right knee scar rated noncompensable from January 14, 2019. The Board notes that the Veteran’s service-connected disabilities have not been evaluated since August 2012 and the Board finds that remand for VA examinations to ascertain the current level of functional impairment due to service-connected disabilities is needed. The matter is REMANDED for the following action: 1. Obtain relevant outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for VA examination(s) to determine the current nature and severity of his service-connected PTSD, tinnitus, right knee status post total knee replacement, right elbow, right forefinger, right index finger, and right knee scar disabilities. The examiner(s) should review the claims folder and should note that review in the report. The rationale for all opinions should be explained. All necessary tests and studies should be performed, and all clinical findings reported in detail. The examiner(s) should identify the existence and severity of all current manifestations of the PTSD, tinnitus, right knee status post total knee replacement, right elbow, right forefinger, right index finger, and right knee scar disabilities. The examiner(s) address the levels of functional impairment caused by PTSD, tinnitus, right knee status post total knee replacement, right elbow, right forefinger, right index finger, and right knee scar disabilities and should describe the symptoms, to include the frequency and severity of symptoms, resulting in those levels of impairment. The appropriate DBQs should be used, to extent possible. (Continued on the next page)   3. After completing the above action and any other necessary development, the claim must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representative. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.