Citation Nr: 20062425 Decision Date: 09/22/20 Archive Date: 09/22/20 DOCKET NO. 16-09 780 DATE: September 22, 2020 ORDER Entitlement to service connection for right ear hearing loss disability is denied. REMANDED Entitlement to service connection for right knee degenerative joint disease (DJD) is remanded. Entitlement to service connection for a left knee DJD is remanded. FINDING OF FACT The preponderance of the evidence is against finding that right ear hearing loss disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to June 1968. His military occupational specialty was as a missile crewman and in personnel transport. His personnel records also reflect subsequent service in the Army Reserves. In August 2019, a videoconference hearing was held before the undersigned; testimony was provided by the Veteran and his spouse. A transcript of the hearing is of record. The issues were remanded in August 2019 for additional evidentiary development and have now been returned to the Board for further appellate consideration. Entitlement to service connection for right ear hearing loss disability is denied. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110 (wartime), 1131 (peacetime) (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic diseases, to sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2019). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) (2019) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a) (2019). 38 C.F.R. § 3.303(b) (2019); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 (2019). Lay evidence must be considered, and competent lay evidence can be sufficient in and of itself to establish service connection. However, the Board retains the discretion to determine credibility and weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Laypersons are considered competent to provide a medical diagnosis only if (1) the disorder is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicolson, 492 F.3d 1372 (Fed. Cir. 2007). Background The Veteran contends that he suffered injury to the right ear in an inservice injury that occurred in the 1960s. Specifically, when stationed at Fort Hancock, New Jersey, one of his duties was to drive a six-wheel bus to make chow runs for guards to eat. Sometime between 1965-1966, a vehicle ran a stop light and hit the bus on the right side. He suffered a “hard lick” to the right side of the head. He said that a civilian doctor told him that he was likely to have some right ear hearing loss later in life. See the October 2013 VA FORM 21-4142. Service treatment records (STRs) are negative for the above referenced automobile accident. The available STRs include audiometric tests from time of service entrance and service discharge which show normal hearing in the right ear. Also of record are numerous audiometric test results that were conducted during the reserve component of the Veteran’s service, to include audiometric tests in 1980 and 1984. At no time was right ear hearing loss disability diagnosed. VA audiological examination in January 2014 showed bilateral hearing loss disability. The examiner’s negative opinion regarding the etiology of the Veteran’s right ear hearing loss disability was primarily based on the fact that the STRs were absent a report of hearing loss. As such, the opinion is deemed inadequate for appellate consideration and will not be given any probative weight The Veteran was afforded another VA audiological examination in March 2020. The claim file was reviewed, and there was an in-person examination. Following audiological examination, right ear sensorineural hearing loss disability in accordance with 38 C.F.R. § 3.385 was noted. As already reported and acknowledged by the examiner, in-service noise exposure was conceded. However, the examiner opined that it was less likely than not (less that 50 percent probability) that the Veteran’s right ear hearing loss disability was due to military noise exposure or due to the contended in-service head injury. For rationale, the examiner noted that in-service audiometric testing showed no hearing loss. Moreover, two audiometric examinations conducted during the Veteran’s reserve status in the 1980s were also negative for right ear hearing loss. Regarding delayed onset of hearing loss, the examiner stated that based on some recent studies with rodents, a few investigators have speculated that a delayed onset of neural, central or cochlear changes may occur as a result of noise exposure. However, the conclusions reached in the animal studies are based primarily on histology testing and measures not available in a clinical setting. Differences in underlying genetic susceptibility to noise exist and have been controlled for in these animal studies. Therefore, the information gleaned from rodent research has been difficult to translate to humans. Similar challenges in translational research are well documented in other areas of biomedical investigation, including research in the treatment of cancer and chronic diseases. The examiner further noted that the Institute of Medicine (IOM) report published in 2006 currently remains the most comprehensive review regarding effects of noise exposure in our population of Veterans. The IOM report stated "There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." 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." In regard to the contended head injury, the examiner explained that there was no corroboration of an in-service head injury. However, because an opinion regarding Veteran's right sided hearing loss in relation to a head injury was requested, the examiner provided an opinion stating that hearing was within normal limits at his active duty exit in 1968, and no permanent significant threshold shifts are noted when comparing his active duty service exams. Therefore, it can be concluded that permanent hearing loss was not present at time of the contended head injury in 1965/1966. Evidence of hearing loss is not noted in the service records until a 1984 reserve audiogram. Review of the literature shows no evidence of head injury causing delayed onset hearing loss. The examiner noted that medical literature and studies have found that hearing loss associated with head trauma may occur within the first year after the trauma, but then will stabilize and show no further deterioration. Studies also note that "when further hearing deterioration occurs at a later stage, we suspect it to be of a different cause and to be unrelated to the head injury." The examiner concluded that that the Veteran's right sided hearing loss is less likely than not a result of the contended head injury in service. Based on the foregoing, the Board finds that the most probative evidence of record establishes that the Veteran’s right ear hearing loss disability is less likely than not related to his period of active service. The Board is placing high probative weight on the VA opinion of record as it was based on an examination of the Veteran, a review of the claim file, and is supported by adequate rationale. Moreover, the opinion stands uncontradicted by any other competent evidence of record. Regarding the Veteran’s assertions that he experienced an in-service MVA resulting in right ear hearing loss disability, there is no corroboration of such an incident. Nonetheless, and assuming such accident occurred, post service audiological testing in the 1980s was negative for right ear hearing loss disability. While the lack of a diagnosed disability in service is not dispositive of the issue, in this case, the Board notes that there are additional audiograms of record from the reserve period of service which show normal hearing some two decades post active duty and the contended head injury. Moreover, the examiner provided a full rationale as to why in this case, there is no delayed onset of hearing loss post service both from the conceded noise exposure and the contended head injury. Indeed, while the examiner acknowledged that noise exposure in service was conceded, he explained that the record did not show an actual noise related injury in service leading to the current right ear hearing loss disability. Moreover, while a head injury was not confirmed by the record, the examiner explained that the current right ear hearing loss disability would not be related to a head injury in service. The examiner explained that any hearing loss related to such head injury would have manifested within a year of the injury. Moreover, studies show that if there is hearing loss many years post the injury, the cause is unrelated to the injury. This is significant in the present case as there is a period of almost two decades without a showing of right ear hearing loss. The Board acknowledges the Veteran’s belief that his right ear hearing loss disability is related to service. However, it has not been shown that the Veteran has the requisite expertise to diagnose the cause of any hearing impairment. As such, the Veteran’s assertion that his right ear hearing loss disability does not serve to support a finding of service connection. In sum, the most probative evidence of record establishes that the Veteran’s currently diagnosed right ear hearing loss disability is not related to his period of active duty to include the contended head injury. Moreover, the most probative medical evidence of record has demonstrated that these conditions were first diagnosed many years following separation. As such, a right ear sensorineural hearing loss disability is not directly or presumptively related to the Veteran’s period of active service. As the weight of the evidence is against these claims, the “benefit of the doubt” rule is not for application. The issues are denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for right knee degenerative joint disease (DJD) is remanded. Entitlement to service connection for a left knee DJD is remanded. The Veteran contends that he was involved in a motor vehicle accident in service wherein he injured his knees, and which led to the current bilateral knee DJD. Pursuant to the Board remand of April 2019, an etiology opinion regarding the Veteran’s right and left knee DJD was obtained in March 2020. However, the examiner relied solely on the lack of a corroboration of the claimed motor vehicle accident in service where the Veteran states he injured his knees and the lack of any diagnosed knee disability or symptoms of the same in service. An opinion based on a lack of documented diagnosis or symptoms in service is inadequate. As such, a new opinion is needed. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the etiology of the Veteran’s bilateral knee osteoarthritis. An examination should be scheduled only if deemed needed by the examiner. The entire claim file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. Upon review of the file, the examiner must provide the following opinion: Is it at least as likely as not (a 50 percent probability or greater) (a) that the Veteran’s right knee disability had its onset in, or is otherwise related to, his military service; or(b) that the Veteran’s left knee disability had its onset in, or is otherwise related to, his military service, to include the contended motor vehicle accident in service. In providing the opinion, the examiner is advised the Veteran is competent to report when his symptoms first started. Moreover, the examiner is reminded that an absence of documented symptomatology or diagnosis in service is not sufficient rationale for an opinion. In regard to the contended accident in service, the examiner is requested to provide a separate opinion which assumes, for purposes of the opinion, the reported accident occurred. A complete rationale for all opinions rendered must be provided. (Continued on next page)   2. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.