Citation Nr: 20008136 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 10-43 503 DATE: January 30, 2020 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for a prostate disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss is as least as likely as not related to his active service. 2. The preponderance of the evidence is against a finding that the Veteran currently has a prostate disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for a prostate disability have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the U.S. Army from June 1966 to June 1968. During this time, he was awarded the Vietnam Campaign Medal, the Vietnam Service Medal, the Army Commendation Medal, and the National Defense Service Medal, among other awards. These matters come to the Board of Veterans’ Affairs (Board) on appeal from March 2009 and October 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Procedurally, the Board notes that it remanded this case in August 2018 for the Veteran to undergo a VA prostate examination and for an addendum VA hearing loss opinion to be generated; the addendum hearing loss opinion and the VA prostate examination both took place in September 2019. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires competent evidence showing: (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 “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board will assess the competence and credibility of lay statements as well. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an approximate balance of the evidence for and against a claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is unique to the VA adjudicatory process, and the nation, in recognition of our debt to our veterans, has taken upon itself the risk of error in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See, e.g., Struck v. Brown, 9 Vet. App. 145, 152 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). 1. Entitlement to service connection for a bilateral hearing loss disability The Veteran asserts that service connection is warranted for bilateral hearing loss, which he stated states began as a result of exposure to artillery fire from howitzers in combat while deployed to Vietnam during his active service. A review of the Veteran’s service treatment records (STRs) reflects that his June 1966 enlistment audiogram yielded the following audiometric testing results: Hertz 1000 2000 3000 4000 Right Ear -5 -5 -5 5 Left Ear 0 10 25 25 The Veteran’s May 1968 separation audiogram yielded the following audiometric testing results: Hertz 1000 2000 3000 4000 Right Ear -10 -10 [no result] -5 Left Ear -10 -10 [no result] 0 The Board notes that a review of the Veteran’s post-service treatment records reflect that he first reported having hearing loss and tinnitus symptoms in Mary 2006. See May 2006 Fort Chiswell Medical Center Office Note. In conjunction with his service connection claim, the Veteran underwent a VA audiological examination in May 2009. See May 2009 VA Audio Examination. The examiner conducted an audiogram, which reflected the following audiometric testing results: Hertz 1000 2000 3000 4000 Average Right Ear 5 10 55 60 32 Left Ear 5 35 60 60 40 The Veteran was also tested on speech discrimination using the Maryland CNC word list, and his speech discrimination measured at 78 percent for his right ear, and 88 percent for his left ear. The VA examiner diagnosed the Veteran with moderately severe sloping to severe bilateral high frequency sensorineural hearing loss in the frequency range of 500 to 4000 Hz as well as in the range of 6000 Hz to higher frequencies. While the examiner noted that the Veteran reported being exposed to artillery fire while deployed to Vietnam, she determined that his bilateral hearing loss was less likely than not related to his active service because both his enlistment and separation audiograms indicated that he had normal hearing, with no deterioration of hearing between those two exams; his STRs did not document any complaints of or treatment for hearing loss; and because “hearing loss due to noise occurs at the time of the exposure and not subsequently.” The Veteran underwent another VA hearing loss examination in June 2011. While the examiner diagnosed the Veteran with right ear moderate to profound sensorineural hearing loss in the higher frequencies, and with left ear normal sloping to mild to moderately severe sensorineural hearing loss from 2000Hz to 8000Hz, no medical opinion was generated regarding hearing loss. At the time, the examiner only addressed the issue of a separate claim for entitlement to service connection for tinnitus. Pursuant to the Board’s August 2018 remand, an addendum opinion regarding the nature and etiology of the Veteran’s hearing loss was generated in September 2019. See September 2019 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Specifically, the examiner was asked to address the possibility of a delayed onset in the Veteran’s bilateral hearing loss as well as the absence of noise exposure after his active service. The examiner opined that the Veteran’s hearing loss was less likely than not related to service because the Veteran had normal hearing at separation, and there were no notations of hearing loss issues in the Veteran’s STRs. Regarding the question of delayed onset of hearing loss, the examiner noted that the “Institute of Medicine stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure,” and that “the IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was ‘unlikely.’” The examiner also addressed the question of the absence of noise exposure after the Veteran’s active service. She noted that a review of the Veteran’s file, including case history interviews from his 2009 and 2011 VA examinations, reflected that the Veteran had previously “stated that as a civilian he has worked in factory settings, he has worked as a mechanic, and he has worked as a welder for coal mines. These work environments and job descriptions include probable exposure to hazardous noise.” With respect to the Veteran’s assertions that his hearing loss is due to his active service, although lay persons are competent to provide opinions on some medical issues, determining a diagnosis for the nature and etiology of such a condition falls outside the scope of common knowledge of a lay person. While the Veteran can competently report symptoms of hearing loss, any opinion regarding the diagnosis regarding the nature and etiology of those symptoms requires medical expertise that the Veteran has not demonstrated. See Jandreau v Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns less probative weight to the Veteran’s assertions that currently he has hearing loss that is related to his active service. The most probative evidence of record are the findings of the August 2018 VA examiner that the Veteran’s current bilateral hearing loss is less likely than not related to his active service. The weight of the evidence does not show that the Veteran’s current bilateral hearing loss is related to his active service. Thus, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for bilateral hearing loss, and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Accordingly, the claim for service connection for a bilateral hearing loss disability is denied. 2. Entitlement to service connection for a prostate disability The Veteran has also asserted that service connection is warranted for a prostate disability resulting from herbicide agent exposure during his deployment to Vietnam during his active service. In conjunction with his service connection claim, the Veteran underwent a VA prostate cancer examination. See September 2019 VA Prostate Cancer DBQ. The examiner noted that the Veteran reported having no knowledge of a diagnosis of prostate cancer, although he did report a history of benign prostatic hypertrophy. The examiner tested the Veteran’s prostate antigen levels, which measured at 1.87ng/mL, which was within the reference range of 0.0 to 4.0 ng/mL. Further, a review of the Veteran’s post service-treatment records does not reflect any symptoms of or treatment for a prostate condition. See, e.g., December 2007 Fort Chiswell Medical Center Office Note (indicating the Veteran’s prostate-specific antigen level tested at 1.7ng/mL); January 2009 Wythe Community Hospital Laboratory Note (measuring the Veteran’s prostate-specific antigen level at 2.0ng/mL as compared to a reference range of 0.0 to 4.0mL and further noting that “all labs look good”); December 2010 Danville CBOC Outreach Note (documenting that a prostate exam was negative with no mass); September 2011 VA Compensation and Pension General Medical Examination (recording that a genitourinary examination was conducted and with normal prostate examination findings). These findings strongly suggest that the Veteran does not have a current prostate disability. To reiterate, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich, 104 F. 3d at 1332. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. With respect to the Veteran’s assertions that he has a prostate condition, although lay persons are competent to provide opinions on some medical issues, determining a diagnosis for the nature and etiology of such a condition falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report physical symptoms of a prostate condition, any opinion regarding the diagnosis regarding the nature and etiology of those symptoms requires medical expertise that the Veteran has not demonstrated. See Jandreau, 492 F. 3d at 1376. As such, the Board assigns less probative weight to the Veteran’s assertions that currently he has a prostate disability that is related to his active service. The most probative evidence of record are the findings of the VA examiner that the Veteran does not currently have any manifestations or symptoms of a prostate condition. The weight of the evidence does not show that the Veteran currently has a prostate disability. Thus, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a prostate disability, and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert,   1 Vet. App. at 49. Accordingly, the claim for service connection for a prostate disability is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Raj, 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.