Citation Nr: 20003552 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 15-45 880 DATE: January 16, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a bilateral sinus disorder is denied. Entitlement to service connection for a bilateral knee disorder is denied. Entitlement to service connection for skeletal arthritis is denied. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss for VA purposes. 2. The evidence does not demonstrate tinnitus that is related to service. 3. The evidence does not demonstrate a bilateral sinus disorder that is related to service. 4. The evidence does not demonstrate a bilateral knee disorder that is related to service. 5. The evidence does not demonstrate a skeletal arthritis disorder that is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for service connection for a bilateral sinus disorder are not met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 4. The criteria for service connection for a bilateral knee disorder are not met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 5. The criteria for service connection for a skeletal arthritis disorder are not met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran initially requested a Board hearing on his December 2015 VA Form 9, he withdrew his request in July 2019. The Board will continue with adjudication of the appeal. Duties to Notify and Assist 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). Initially, the VA has not provided examinations for the Veteran’s claims of entitlement to service connection for bilateral sinus conditions, bilateral knee disorders, and skeletal arthritis. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, other than submitting a claim, the Veteran has not advanced any theory of entitlement for any of his claims. Further, the evidence does not demonstrate current disabilities or recurrent symptoms of a disability, because there is no lay or medical evidence of record other than the Veteran’s service treatment records from 1970 to 1972. Thus, the evidence does not show current disorders, in-service events, or indications that any claimed disorder may be associated with service. As such, the Board finds no duty to assist error in not providing examinations for the sinus, knee, and skeletal arthritis claims. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases, including organic diseases of the nervous system and arthritis may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive 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. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a “current disability” is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). 1. Bilateral Hearing Loss Other than submitting a claim of entitlement to service connection for bilateral hearing loss, the Veteran has not advanced any specific contention regarding this claim. 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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 only audiometric data of record during the Veteran’s claim is from a July 2014 VA examination. At the time, the examiner found that the Veteran had impaired hearing but that the levels found did not meet the criteria to be considered a disability for VA purposes. On testing, the Veteran exhibited puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 5 25 30 LEFT 10 15 10 30 35 Speech audiometry revealed speech recognition ability of 10 percent in the right ear and 94 in the left ear. Because the auditory thresholds were not 40 dB or greater at 500, 1000, 2000, 3000, 4000 Hz in either ear, and because the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz were not 26 decibels or greater in either ear, and because neither ear had speech discrimination scores less than 94 percent, a hearing loss disability is not demonstrated. The Veteran is competent to comment on his difficulty in hearing, and he has done so simply by submitting a claim. To the extent the Veteran is commenting on the level of hearing loss, however, his statements are not competent. Although it is error to categorically reject a lay person as competent to provide a diagnosis opinion, not all diagnostic questions are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the diagnosis of a hearing loss disability for VA purposes is not something that can be determined by mere observation. Nor is this question simple, as it requires clinical testing and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported. Such a determination is clearly distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the Veteran’s implicit allegation via his claim that he has a bilateral hearing loss disability is not competent evidence. Thus, hearing loss disability is not demonstrated at any time during the appeal period. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Tinnitus Like the hearing loss claim, the Veteran has not advanced any argument with regard to his tinnitus claim. Similarly, the Veteran did not report tinnitus at a July 2014 VA examination. The examiner accordingly found that tinnitus was not present. Thus, there is no current disability. Brammer, 3 Vet. App. at 225. Even assuming that a current disability is shown, there is nothing of record to suggest tinnitus had onset in service or is otherwise related to service. Thus, the appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Bilateral sinus disorder Other than claiming entitlement to service connection for a bilateral sinus disorder in October 2013, the Veteran has advanced no argument. The Veteran’s STRs document instances of sore throat. See e.g. September and November 1971 entries. However, there are no sinus conditions documented. His separation examination in February 1972 noted normal clinical evaluation of the sinuses. An in-service event is not demonstrated. Further, even assuming that the Veteran is competent to diagnose a sinus disorder implicitly through the submission of a claim for service connection, there is no indication that his claimed symptoms are associated to service. Again, the Veteran has not described current symptoms or provided any nexus statement or explanation of etiology or chronicity. In the absence of any present disability, in-service disease, or nexus evidence, the Board will deny the claim. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. 4. Bilateral knee disorder Again, regrettably, neither the Veteran nor his representative has advanced nay argument to support a finding that the Veteran has a bilateral knee disorder that is etiologically related to service. First, the STRs do not document a knee injury. Second, other than the Veteran’s claim, there is no evidence of a bilateral knee disorder. Finally, even assuming that a bilateral knee disorder is present, there is no lay or medical evidence indicating that this disorder is related to the Veteran’s military service. Accordingly, the appeal is denied. There is no reasonable doubt to resolve in the Veteran’s favor. Gilbert, 1 Vet. App. 49. 5. Skeletal arthritis The Board denies this claim for the same reason as the previous claims. In the absence of any argument or evidence suggesting a current disability, an in-service injury, event, or disease, or a nexus between a current disability and service, there is no basis upon which service connection may be granted. Accordingly, the appeal is denied. As with the prior claims, there is no reasonable doubt to resolve in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steve Ginski, 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.