Citation Nr: 20062002 Decision Date: 09/21/20 Archive Date: 09/21/20 DOCKET NO. 15-11 173 DATE: September 21, 2020 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to a compensable disability rating for service-connected left ear hearing loss is denied. REMANDED Entitlement to service connection for flat feet is remanded. Entitlement to service connection for a right knee condition, to include secondary to service-connected left knee condition is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a right shoulder scar is remanded. Entitlement to service connection for a right middle finger laceration residual is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had right ear hearing loss for VA disability purposes at any time during or approximate to the pendency of the claim. 2. Veteran’s left ear hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to June 1992 and November 1992 to June 1997 in the United States Army, to include active duty service in the Gulf War Era. In June 2018, the Board remanded the claims for additional development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for right ear hearing loss is denied. The Veteran contends that he has hearing loss in his right ear that is etiologically related to in-service noise exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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, 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. The question for the Board is whether the Veteran has a current right ear hearing loss disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss for VA disability purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The January 2020 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of impaired hearing, he did not have a diagnosis of right ear hearing loss for VA purposes and that his right ear hearing loss was within normal limits. Further, the Veteran’s medical treatment records do not contain a diagnosis of right ear hearing loss. While the Veteran believes he has a current diagnosis of hearing loss in his right ear, he is not competent to provide a diagnosis in this case. The diagnosis of a hearing loss disability is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 2. Entitlement to a compensable disability rating for service-connected left ear hearing loss is denied. The Veteran contends that he is entitled to a higher rating because of more severe left ear hearing impairment. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). A January 2020 VA examination reveals that the Veteran reported that “it’s frustrating trying to talk to people because I can’t hear them on the left side…[i]t’s a little bit better with the hearing aid…[w]hen I’m in traffic, I can’t hear certain sounds so it affects my driving.” 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [January 2020] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 25 20 22 96% LEFT 35 40 50 50 44 90% Applying the results to Table VI, the findings yield a numeric designation of Level II in the left ear and, as stated above, a numeric designation of Level I is assigned for the right ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board notes that the Veteran’s prior VA examination for left ear hearing loss also indicated a noncompensable level of hearing loss. While the January 2020 examination presents an increase in severity of the impairment the objective testing results still represent a noncompensable disability level for left ear hearing loss. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty talking with people, especially on his left side, and more significant impairments in the presence of noise. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for flat feet is remanded. The Board cannot make a fully-informed decision on the claim because no VA examiner has adequately opined whether the Veteran’s preeixsting flat feet were aggravated by his active duty service. The May 2020 addendum opinion is inadequate as it relies on the examiner’s inability to establish a baseline for the Veteran’s flat feet noted at entry to active duty service. The entrance examination characterizes the Veteran’s preexisting flat feet as “mild” and the Veteran’s PULHES chart indicates that the Veteran was physically normal for active duty purposes. Therefore, further opinion is required. 2. Entitlement to service connection for a right knee condition is remanded. The Board cannot make a fully-informed decision on the claim because no VA examiner has opined whether the condition is secondary to his service-connected left knee. The Board notes that prior argument for this issue has advanced a secondary service conneciton theory and therefore it must be addressed in light of the grant of service-connection for a left knee condition. 3. Entitlement to service connection for a back condition is remanded. 4. Entitlement to service connection for a right shoulder scar is remanded. 5. Entitlement to service connection for a right shoulder condition is remanded. The Board cannot make a fully-informed decision on the claims because no VA examiner has adequately opined whether these current conditions are etiologically realted to in-service injuries described in the Veteran’s testimony before the Board. The March 2020 opinion obtained after remand did not consider the Veteran’s competent testimony regarding the nature of his injuries and lack of treatment for symptoms. 6. Entitlement to service connection for right middle finger laceration residuals is remanded. In the June 2018 remand, the Board directed the AOJ to obtain records of the Veteran’s inpatient treatment at Camp Casey Hospital, Osan Air Base Hospital, or Seoul, Korea between June 1988 and June 1997. In July 2019 the AOJ submitted a Personal Information Exchange System (PIES) request for such records with a negative response returned on August 2019. While the PIES response was negative it does not appear that separate requests were made for each of the years identified. The matters are REMANDED for the following action: 1. Take all appropriate action to obtain records of any inpatient treatment at Camp Casey Hospital and Osan Air Base Hospital for the year spanning June 1988 to June 1997. The AOJ must make separate requests for each year. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his flat feet. The examiner must opine whether it was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. The examiner is informed that the Veteran’s flat feet were mild at the time of entrance into service and this should be considered the baseline for severity. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner’s own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 3. Obtain an addendum opinion from an appropriate clinician on the likely etiology of the Veteran’s right knee disability. Is it at least as likely as not that the right knee is (i) proximately due to or (ii) aggravated by service-connected left knee condition? For this question, “aggravation” means any increase in disability. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. 4. Obtain addendum opinions from an appropriate clinician regarding on the likely etiology of the Veteran’s back, right shoulder, and right shoulder scar disabilities. Is it at least as likely as not that any currently diagnosed back, right shoulder and right shoulder scar disabilities are not related to in-service injuries? In answering these questions, the examiner should specifically consider the following: (i) the Veteran’s competent report of back pain after a lifting injury in service, and; (ii) his report of injuring his right shoulder in a fall during service. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner’s own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 5. Schedule the Veteran for an examination by an appropriate clinician (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any residuals of a laceration to the right middle finger. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the laceration the Veteran described during his testimony. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner’s own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.