Citation Nr: 20007463 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 16-40 700A DATE: January 30, 2020 ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right wrist carpal tunnel syndrome is denied. REMANDED Entitlement to service connection for status post-surgical removal of bilateral gynecomastia with elective cosmetic surgical revision is remanded. FINDINGS OF FACT 1. The Veteran does not have a hearing loss disability as defined by VA regulations at any time since the claim has been filed. 2. The Veteran does not have a current disability of right wrist carpal tunnel syndrome at any time since the claim has been filed. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left ear hearing loss has not been met. 38 U.S.C. §§ 1110, 5107 (b)(2012); 38 C.F.R. §§ 3.102, 3.303 (a), 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for right wrist carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from June 1994 to March 2011. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 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. 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). In addition, certain chronic diseases, including hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for left ear hearing loss The Veteran claims that he incurred left ear hearing loss as a result of exposure to acoustic trauma during active duty. His claim of entitlement to service connection was received by VA in December 2013. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). A veteran will be found to have hearing loss for VA purposes 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 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. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran’s period of active duty is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss disability. Hensley, 5 Vet. App. at 159. The Board finds that the preponderance of the competent probative evidence demonstrates that the Veteran does not have a current hearing loss disability for VA purposes at any time since this claim has been submitted. As such, the Veteran’s claim of entitlement to service connection must be denied. The Veteran underwent a VA examination in February 2014 in connection with his service connection claim. The Veteran reported in-service noise exposure as a musician. He also reported that he required people to repeat themselves so he could follow conversations. Audiometric testing revealed normal hearing for VA purposes in the left ear. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 05 15 15 15 25 The examiner reported speech discrimination test results of 100 percent for the left ear. The Veteran underwent a second VA examination in June 2018. The examiner noted the Veteran’s recreational noise exposure from performing music on the weekends and difficulty in discerning what was being said to him. Audiometric testing again revealed normal hearing for VA purposes in the left ear. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 20 20 25 35 The examiner reported speech discrimination test results of 100 percent for the left ear. The Veteran’s left ear hearing loss has still not risen to the level required to be considered disabling for VA purposes. To establish a right to compensation for a present disability on a direct basis, the Veteran must show the existence of a present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). In this case, the evidence does not establish a present hearing loss disability in the left ear as defined by VA at any time since the claim has been filed, and the claim must fail on this basis alone. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his left ear hearing loss was due to exposure to in-service acoustic trauma. The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. Layno v. Brown, 6 Vet. App. 465 (1994). However, determining the exact degree and diagnosis of his left ear hearing loss requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, his lay statements are given little probative value. Since the preponderance of the evidence weighs against the claim, the Veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). The Veteran’s claim of entitlement for left ear hearing loss must be denied as there is no current disability. 2. Entitlement to service connection for right wrist carpal tunnel syndrome. The Veteran contends that he currently experiences right wrist carpal tunnel syndrome that is the result of his military service. However, the Board finds that the preponderance of the competent probative evidence demonstrates that the Veteran does not have a current disability for VA compensation purposes. As such, the Veteran’s claim of entitlement to service connection must be denied. The Veteran underwent a VA examination in February 2014. The examiner noted a diagnosis of right wrist carpal tunnel syndrome; however, the examiner stated that this diagnosis was provided on the basis of the Veteran’s own reported history. He reported right hand minimal intermittent tingling and numbness since service; however, he was not experiencing these symptoms at the time of the examination. In addition, the Veteran had not sought treatment for his right wrist at any time during or since service. Clinical examination revealed no evidence of intermittent or constant right wrist pain, as well as no evidence of right wrist numbness. The examiner also found normal muscle strength, normal sensory and reflex testing, and normal upper extremity nerves and radicular groups. The examiner was unable to give an etiology opinion on the Veteran’s right wrist claim without resorting to speculation due to the lack of a diagnosis and treatment right wrist carpal tunnel syndrome based on a review of the evidence of record. While a diagnosis was noted of right wrist carpal tunnel syndrome, that diagnosis was based exclusively on the Veteran’s own historical report of such a diagnosis, which is not supported by any medical evidence of record. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability, however, etiology and diagnosis of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make a medical diagnosis of carpal tunnel syndrome, especially in light of the VA examiner’s finding that not present disability could be found, and the fact that the evidence fails to demonstrate any other diagnosis either during or after service. See id. Recently, the Federal Circuit held that "pain in the absence of a presently-diagnosed condition can cause functional impairment," which may qualify as a "disability" for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that "a veteran could demonstrate service connection simply by asserting subjective pain" because, to establish that a disability is present, the veteran "will need to show that... pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. "Functional impairment," the Federal Circuit noted, is defined as the inability of the body or a constituent part of it "'to function under the ordinary conditions of daily life including employment.'" Id. at 1363 (quoting 38 C.F.R. § 4.10). In the present case, there is no evidence to demonstrate that the Veteran’s claimed right wrist carpal tunnel syndrome has reached the level of functional impairment. Indeed, the VA examiner noted normal muscle strength, normal sensory and reflex examinations, and normal upper extremity nerves. Furthermore, the Veteran reported intermittent tingling and numbness since service, but denied any current complaints and any treatment history for this issue. Accordingly, the Board finds that the Veteran does not have a current disability regarding his right wrist at any point since his claim was filed. To establish a right to compensation for a present disability on a direct basis, the Veteran must show the existence of a present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). In this case, the evidence does not establish a current disability of right wrist carpal tunnel syndrome at any time since the claim has been filed, and the claim must be denied on this basis alone. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). Further, even presuming that the Veteran has a present diagnosis of right wrist carpal tunnel syndrome, the Board finds that the claim must fail as there is no evidence of any in-service incident, illness or injury to which the present disability could be etiologically linked. A review of the Veteran’s STRs reveals multiple complaints and treatment to left wrist carpal tunnel syndrome, which the Veteran is already service connected for. However, no complaints, diagnosis of, or treatment for right wrist carpal tunnel syndrome or other right wrist issues were found. Furthermore, there is no competent medical evidence documenting complaints, diagnosis of, or treatment for right wrist carpal tunnel syndrome at any point since separating from service. In short, the Board finds that the claim fails both the first and second criteria of service connection- a present disability, and an in-service incident, illness or injury to which the present disability may be etiologically linked. Since the preponderance of the evidence weighs against the claim, the Veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). The Veteran’s claim of entitlement for right wrist carpal tunnel syndrome must be denied. REASONS FOR REMAND 1. Entitlement to service connection for status post-surgical removal of bilateral gynecomastia with elective cosmetic surgical revision The Veteran contends that his preexisting bilateral gynecomastia was aggravated by his military service. A review of the STRs shows that the Veteran underwent surgical removal of bilateral gynecomastia in 1977, prior to his service entrance. This surgery was noted on his entrance examination. Furthermore, the Veteran has submitted in-service private treatment records that noted his complaints of burning sensations and shooting pains during physical activity due to the adherence of his nipples to his chest muscles. In-service surgical revision of bilateral gynecomastectomies was conducted in October 2002. If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but he may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and clear and unmistakable evidence demonstrates that the injury or disease was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (outlining the presumption of soundness). A preexisting disorder will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). It is the Veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. Jensen v. Brown, 19 F.3d 1413 (Fed.Cir.1994). The Veteran must submit, or the record must contain, some evidence demonstrating that the preexisting disability increased in severity during service for the presumption of aggravation to attach. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir 2004); Verdon v. Brown, 8 Vet. App. 529 (1996). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir 2004); Cotant v. Principi, 17 Vet. App. 116 (2003); 38 C.F.R. § 3.306 (b). The Board notes that the Veteran has not undergone a VA examination for this claim. In addition, there is no probative medical opinion found in the claims file that addresses the issue of whether the preexisting bilateral gynecomastia was aggravated by the Veteran’s military service. The Board finds that the pertinent medical evidence is insufficient to adjudicate the claim of service connection. Accordingly, the Board will remand this matter for a VA examination to be conducted. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). As the Veteran’s bilateral gynecomastia was reported on the entrance examination, the examiner should provide an opinion as to whether that condition was permanently increased in severity during active service. 38 C.F.R. § 3.306 (a). The matter is REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Schedule the Veteran for a VA examination regarding his bilateral gynecomastia. The claims file should be made available for review. After an examination of the Veteran, and a review of the evidence of record, the examiner must address the following: Provide an opinion as to whether it is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral gynecomastia, which clearly and unmistakably existed prior to service, was aggravated beyond its normal progression during his active service. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.