Citation Nr: 20023972 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 18-40 624 DATE: April 7, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability is remanded. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to a compensable rating for headaches with dizziness is remanded. Entitlement to a compensable rating for a left thumb disability is remanded. FINDING OF FACT A present bilateral hearing loss for VA compensation purposes is not shown. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 2013 to September 2013 and from June 2015 to March 2016. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2020, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. 1. Entitlement to service connection for bilateral hearing loss. 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. § 1110; 38 C.F.R. § 3.303 (a). 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 connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For VA compensation purposes, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. For VA compensation purposes, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran contends that he has bilateral hearing loss as a result of active service. In statements provided at his January 2020 hearing it was asserted that he had hearing loss related to a tinnitus disorder, but it was noted that there was no evidence indicating a hearing loss for VA compensation purposes. VA audiology examination in July 2016 included diagnoses of right and left ear sensorineural hearing loss. However, the examiner specified that the Veteran’s hearing loss was not at a level considered to be a disability for VA purposes. Authorized audiological evaluation revealed, pure tone thresholds, in decibels, as follows: in the right ear: 5 (500Hz.), 10 (1000 Hz.), 15 (2000 Hz.), 10 (3000 Hz.), and 30 (4000 Hz.); and in his left ear: 10 (500Hz.), 10 (1000 Hz.), 15 (2000 Hz.), 35 (3000 Hz.), and 30 (4000 Hz.). Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. Based upon the evidence of record, the Board finds that a present bilateral hearing loss for VA compensation purposes is not shown. The July 2016 VA medical opinion in this case is persuasive. The opinion is shown to have based upon a substantially correct review the evidence of record and to have adequately considered the lay statements and reported symptom manifestations history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There is no competent evidence to the contrary. Indeed, the Veteran, through counsel, acknowledged that there was no competent evidence documenting hearing loss for VA purposes. Consideration must be given to the Veteran’s personal assertion that he has a present hearing loss disability as a result of service. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claimed disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is certainly competent to report observable symptoms. However, there is no indication that he is competent to establish that he has hearing loss for VA purposes. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Establishing hearing loss for VA purposes requires audiometric testing that is performed and interpreted by a licensed audiologist. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in as to such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran’s claim. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder is remanded. 2. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability is remanded. 3. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is remanded. 4. Entitlement to a compensable rating for headaches with dizziness is remanded. 5. Entitlement to a compensable rating for a left thumb disability is remanded. The Veteran contends that he has a right knee disorder as a result of active service and that his service-connected cervical spine, lumbar spine, headaches with dizziness, and left thumb disabilities are more severely disabling than reflected by the present evaluations. At his personal hearing he reported having sustained a right knee injury during service in Southwest Asia. Service treatment records dated in July 2015 show he sustained an abrasion to the right shin and that he reported he also hit his knee. Although a July 2016 VA examination included a diagnosis of right patellofemoral pain syndrome, no opinion as to etiology was provided. A February 2020 private treatment report included a diagnosis of right knee osteoarthritis. At his January 2020 hearing the Veteran asserted that his service-connected cervical and lumbar spine disorders had increased in severity since his July 2016 VA examination. VA treatment records dated in September 2016 noted he complained of radiating pain to the shoulders and to the buttocks and hips. The Veteran also provided testimony indicating that he missed approximately one and a half days from work each month as a result of his headache disability and described having episodes requiring that he lay down in a dark room. He reported experiencing increased problems with lifting, grabbing, strength, and flexibility due to his left thumb disability. The Board finds that additional VA examinations are required for adequate determinations. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any present right knee disorder. After reviewing the claims file and examining the Veteran, the examiner should address the following: a. Identify/diagnose any disorder of the right knee that present exists or that has existed during the appeal period. In the event that the criteria for a diagnosis of a right knee disorder are not met, it is noted that pain resulting in functional impairment may constitute a disability for service-connection purposes. So, the examiner is to specifically state whether there is any functional impairment associated with the Veteran’s complaints of pain. The “Functional Impact” section of the report of examination should be completed. If there is not functional impairment, explain why b. For any diagnosed disability of the right knee or functional impairment related thereto, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including as a result of an injury in July 2015. c. For any diagnosed disability of the right knee or functional impairment related thereto, state whether it is at least as likely as not the disorder was (i) caused or (ii) aggravated by a service connected disability, to include chronic low back strain. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine and lumbar spine disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must provide rationale. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a period of flare-up, the examiner should glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected headaches with dizziness disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left thumb disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.