Citation Nr: 20006480 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 18-42 776A DATE: January 27, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. New and material evidence has been received, and the claim of entitlement to service connection for a left ankle disability is reopened. REMANDED The issue of entitlement to service connection for a left ankle disability is remanded. The issue of entitlement to service connection for obstructive sleep apnea is remanded. The issue of entitlement to a compensable evaluation for hemorrhoids is remanded. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss that constitutes a disability for VA compensation purposes. 2. Left ear hearing loss was not manifest in service or within one year of separation from service, and is not otherwise related to service. 3. In a February 1995 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for residuals of left ankle sprain; the Veteran did not appeal. 4. The evidence received since the February 1995 rating decision includes the Veteran’s competent statements regarding the presence of a left ankle disability, and is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left ankle disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria to establish service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 2. The criteria to establish service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 3. The February 1995 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle disability. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA in September 2018; however, the Veterans Benefits Administration (VBA) determined that the appeal did not qualify for processing under RAMP. The Veteran was notified of this determination in February 2019. Accordingly, the Board will undertake appellate review of the case in the legacy review system. 1. Entitlement to service connection for bilateral hearing loss The Board notes that since the issuance of an August 2018 statement of the case (SOC), additional records have been added to the claims file, including reports of VA examinations conducted in September 2018. However, these records are not relevant to the issue of entitlement to service connection for bilateral hearing loss. Thus, the Board has concluded that it may proceed with appellate consideration of this issue without prejudice to the Veteran. See 38 C.F.R. § 19.31 (2019). Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of organic diseases nervous system, including hearing loss, may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran’s discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered 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. Service treatment records reflect that on periodic examination in September 1980, audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 5 5 LEFT 30 30 25 15 15 Audiometric testing in February 1985 revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 20 LEFT 15 10 25 10 20 In June 1987, the following puretone thresholds were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 15 15 15 LEFT 10 5 10 10 15 On periodic examination in March 1988, audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 5 15 LEFT 15 15 5 5 10 In April 1993, the following puretone thresholds were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 30 35 25 LEFT 15 10 5 0 0 Audiometric testing in February 1994 revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 5 10 LEFT 20 10 10 5 20 The report of the Veteran’s March 1994 retirement examination notes the thresholds recorded in February 1994, and does not include any comment regarding defective hearing in the summary of defects and diagnoses. He denied ear trouble and hearing loss. He was deemed qualified for retirement. On VA examination in June 2018, the following puretone thresholds were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 35 40 LEFT 45 50 50 55 75 Speech recognition scores were 96 percent on the right and 68 percent on the left. Regarding the Veteran’s left ear hearing loss, the examiner indicated that there was no permanent positive threshold shift greater than normal measurement variability during service. He concluded that left ear hearing loss was not caused by or the result of an in-service event. He cited to an Institute of Medicine report on noise exposure which concluded that noise induced hearing loss occurred immediately, and noted that there was no scientific support for delayed onset hearing loss weeks, months, or years following the exposure event. He indicated that, as the Veteran’s hearing was within normal limits at separation, his current hearing loss was less likely as not the result of military noise exposure. Having considered the evidence of record, the Board concludes that service connection for bilateral hearing loss is not warranted. Regarding the Veteran’s right ear, the evidence does not demonstrate hearing loss that constitutes a disability for VA compensation purposes. The evidence does not reflect puretone thresholds at 40 or greater in any relevant frequency, or 26 or greater in three or more relevant frequencies, or speech recognition scores less than 94 percent. As noted, VA regulations require that hearing loss be reported at a certain level before it will be considered a disability for compensation purposes. In this case, the record does not demonstrate that the Veteran has right ear hearing loss disability as defined by VA regulations. In the absence of proof of a present disability as defined by VA regulations, there can be no valid claim for service connection. Accordingly, the claim of entitlement to service connection for right ear hearing loss must be denied. Regarding the Veteran’s left ear hearing loss, the VA examiner concluded that it was not related to service. In that regard, there is no evidence of pathology in proximity to service or within years of separation. The first post-service evidence showing complaints regarding hearing loss dates to a private record dated in March 2012. Thus, service connection is not warranted on a presumptive basis. Moreover, while the evidence reveals that the Veteran has current left ear hearing loss disability, the most competent and probative evidence of record does not etiologically link this disability to service or any incident therein. Rather, the June 2018 VA examiner opined that left ear hearing loss was not related to service. He concluded that, based on no permanent threshold shift and normal hearing sensitivity on separation, it was less likely than not that hearing loss was related to or caused by military noise exposure. This examiner provided a reasoned opinion based on a complete review of the Veteran’s history, interview and examination, to include the type of noise exposure that the Veteran had during service. In assigning high probative value to the VA examiner’s opinion, the Board notes that he had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran’s past history or that he misstated any relevant fact. The Board thus finds the VA examiner’s opinion to be of greater probative value than the Veteran’s unsupported statements. The Board acknowledges that the VA examiner relied, in part, on a lack of hearing loss diagnosis during service. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). That case does not state, however, that the lack of a diagnosis cannot be considered as a factor in determining whether a nexus exists. Here, the examiner fully reviewed the record, and specifically noted the history. The Veteran’s lay statements were considered. However, on review of the entire record, in the examiner’s opinion, a relationship was not established. Because the examiner considered more than just the lack of a diagnosis, the Board finds that the opinion is, in fact, adequate for the purpose of deciding this claim. To the extent that the Veteran asserts that his current left hearing loss is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed hearing loss disability and tinnitus, because he does not have the requisite medical knowledge or training, and because such matter is beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As discussed, the VA examiner considered the Veteran’s documented history, but ultimately concluded that the current hearing loss and tinnitus are not related to service. The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider. The opinion was provided by a medical professional who reviewed the history, interviewed the Veteran, and provided opinions supported by rationale. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran’s service. While the record contains evidence of left ear hearing loss disability, the preponderance of the evidence is against finding that any such diagnosis is related to any injury or disease in service. Accordingly, the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2019).   REASONS FOR REMAND 1. The issue of entitlement to service connection for a left ankle disability is remanded. Service treatment records indicate that the Veteran was seen for left ankle sprain in March 1989. This record indicates reinjury. He underwent physical therapy. The Veteran asserts that he has a current left ankle disability that is related to service. An examination is necessary to determine the nature and etiology of any current left ankle disability. 2. The issue of entitlement to service connection for obstructive sleep apnea is remanded. The Veteran seeks service connection for sleep apnea, and asserts that this disability occurred during service. Service treatment records reflect that he complained of shortness of breath in August 1992 and on retirement examination in March 1994. There is a current diagnosis of obstructive sleep apnea. The Board concludes that an examination is necessary to determine the nature and etiology of the Veteran’s sleep apnea. 3. The issue of entitlement to a compensable evaluation for hemorrhoids is remanded The Veteran seeks a compensable evaluation for his hemorrhoids. The diagnostic code for hemorrhoids includes persistent bleeding and secondary anemia in the criteria for a 20 percent evaluation. See 38 C.F.R. § 4.114, Diagnostic Code 7336. VA treatment records reflect iron deficiency anemia. While colonoscopy and upper endoscopy were conducted in June 2018 based on that indication, the record is not clear as to the etiology of this finding. The Board also notes that VA examination in August 2018 indicates secondary anemia. However, the record is not clear as to the cause of this finding, and the examiner did not discuss the Veteran’s history as it relates to anemia. Considering the lack of clarity surrounding the Veteran’s iron deficiency anemia, the Board concludes that an examination is necessary to determine whether the Veteran has secondary anemia associated with his service-connected hemorrhoids. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his claimed left ankle disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all diagnoses referable to the Veteran’s left ankle. The examiner should provide an opinion regarding whether it is at least as likely as not that any such diagnosis was incurred in, or is otherwise related, to active service. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for an examination to determine the nature and etiology of his obstructive sleep apnea. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not that tinnitus was incurred in, or is otherwise related, to active service. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for an examination to determine the severity of his service-connected hemorrhoids. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. All pertinent symptomatology and findings referable to the Veteran’s hemorrhoids should be reported in detail. The examiner should specifically discuss the record regarding the Veteran’s iron deficiency anemia and indicate whether such is secondary to the Veteran’s service-connected hemorrhoids. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Then, readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. James A. DeFrank Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.