Citation Nr: 20004375 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 17-21 598 DATE: January 17, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for residuals of a right hand injury (right hand injury) is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had bilateral hearing loss for VA purposes at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2007 to July 2011. These matters come before the Board of Veterans Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In April 2016, the Veteran timely filed a notice of disagreement (NOD). In April 2017, the RO issued a statement of the case (SOC) and the Veteran perfected his substantive appeal. 1. Entitlement to service connection for bilateral hearing loss. The Veteran is seeking service connection for bilateral hearing loss. Specifically, the Veteran contends his current hearing loss is related to exposure to hazardous noise during active duty service. See April 2017 VA Form 9. 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. 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 means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). 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, 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. Turning to the evidence of record, the Veteran’s military occupational specialty (MOS) is listed as a hull technician; however, the Veteran contends he was exposed to hazardous noise through high caliber weapons, engines, general alarms, mechanical explosions, and release valves and pumps, with hearing protection. See August 2016 VA Examination. Service treatment records (STRs) are silent for any complaints, diagnoses of, or treatment for hearing-related problems in service. Following an October 2007 reference audiogram, November 2008, December 2009, July 2010, and June 2011 revealed no significant threshold shifts. In August 2016, the Veteran was afforded a VA audiological examination. The pure tone thresholds, in decibels, in relevant part were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 10 10 10 LEFT 10 15 15 15 The Veteran’s speech discrimination score was reported as 96 percent for the right ear and 96 percent for the left ear using the Maryland CNC word list. The audiologist found normal acoustic immittance, ipsilateral acoustic reflexes, and contralateral acoustic reflexes. The audiologist reviewed the Veteran’s STRs and found that despite noise exposure during service all thresholds in both ears remained within normal limits and as such a standard threshold shift did not occur in either ear. The audiologist also noted that although the Veteran may experience bilateral hearing loss or impairment at a level not considered for VA purposes, the Veteran’s hearing thresholds for both ears did not meet VA standards for hearing loss. He thus opined that the Veteran’s bilateral hearing loss was less likely than not related to service. Following review of the evidence, the Board finds that the criteria under 38 C.F.R. § 3.385 to consider the Veteran’s bilateral hearing loss to be a disability for VA purposes have not been met. The evidence does not show that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; that the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or that speech recognition scores using the Maryland CNC test are less than 94 percent. In this case, although the evidence indicates some degree of hearing loss, the competent evidence of record does not confirm that the criteria under 38 C.F.R. § 3.385 to consider the Veteran’s impaired hearing a disability for VA purposes were met at any time during the appeal period. Therefore, without a current diagnosis of a hearing loss disability in accordance with 38 C.F.R. § 3.385, service connection is not warranted. The Board has considered the lay evidence of record, including the Veteran’s reports of difficulty hearing related to his noise exposure in service and July 2016 Buddy Statement. As a layperson, the Veteran is competent to report that he experiences difficulty hearing in both ears. However, he is not competent to render a diagnosis of a bilateral hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § 3.385. As such, the weight of the evidence is against the Veteran’s claim, and the benefit of the doubt provision does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Board concludes that service connection for bilateral hearing loss is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for right hand injury. The Veteran is seeking service connection for residuals of a right hand injury. Specifically, he contends that his right hand was injured while installing a toilet on his ship and that he has had pain and nerve damage ever since. See April 2017 VA Form 9. Based on a review of the electronic claims folder, the Board finds that additional development is needed prior to adjudication of the claim. Review of the record reveals that the Veteran has not been provided with a VA examination to determine if his right hand injury is etiologically linked to active duty. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the Veteran has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. The threshold for finding a link between current disability and service is low. 38 U.S.C. § 5103A(d); Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran currently experiences symptoms of occasional numbness in his fingers. See October 2014 VA Treatment Records. The Veteran’s April 2007 examination noted no abnormalities in the upper extremities but that the Veteran fractured his right thumb prior to entering into active service. In his June 2011 VA separation examination, the Veteran reported experiencing numbness or tingling in his shoulder, elbow, or wrist. In addition, in a July 2016 buddy statement by G.M., a fellow soldier asserted that the Veteran received a bad cut on his had that required stitches in a shipyard following deployment. As there is evidence of a current disability, evidence of an in-service injury, and some evidence of link to service, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his right hand injury. See McLendon, supra. The Board also notes that the Veteran’s DD 214 and military personnel records have not been associated with the claims file. As such, on remand the Veteran’s DD 214 and military personnel records should be obtained and associated with the claims file. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. The AOJ should obtain all outstanding VA treatment records and any private treatment records identified by the Veteran, to include the Veteran’s DD 214 and military personnel records. All obtained records should be associated with the evidentiary record. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination by an appropriately qualified VA health care professional. The electronic file and a copy of this Remand must be made available to the examiner. After reviewing all available records, the examiner should opine on: (A) Whether there is clear and unmistakable evidence (i.e., it is undebatable) that the claimed residuals of a right hand injury preexisted the Veteran’s service. (B) If so, whether there is clear and unmistakable evidence that the Veteran’s preexisting residuals of a right hand injury were not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). (C) If there is not clear and unmistakable evidence that the Veteran’s residuals of a right hand injury preexisted service, then the Veteran must be considered to have been sound at entry. Based upon that premise, is it as least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s residuals of a right hand injury is related to active service. In doing so, the examiner should consider the June 2011 VA separation examination, VA Form 9, and the July 2016 buddy statement. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.