Citation Nr: A20007349 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190703-22136 DATE: April 30, 2020 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a right foot disability is denied. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) and chronic bronchitis, claimed as breathing problems, residuals of pneumonia, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has had a bilateral hearing loss considered to be a disability for VA purposes at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a left foot disability at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had a right foot disability at any time during or approximate to the pendency of the claim CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with Department of Veterans Affairs (VA) decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran on active duty from November 1955 to September 1957. This appeal comes to the Board of Veterans’ Appeals (Board) from May 2019 Statement of the Case (SOC) issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claims were received by VA in December 2017. The Veteran’s claims were denied in an April 2018 legacy rating decision. The Veteran timely appealed that determination. See August 2018 VA Form 21-0958 (Notice of Disagreement). In May 2019, the RO issued the aforementioned SOC. In July 2019 the Veteran filed a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement), in which he requested direct review under the AMA. In an August 2019 letter, the Board notified the Veteran that his AMA appeal had been received and placed on the Direct Review docket. Because the Veteran has chosen the Direct Review docket, the Board will consider only the evidence of record at the time of the May 2019 SOC. See 38 C.F.R. § 20.202. The record documents that COPD and chronic bronchitis have been assessed. See March 2018 VA examination report. Accordingly, the diagnoses are included in the present claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for a bilateral hearing loss disability. On the authorized audiological evaluation in March 2018, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 10 25 30 LEFT 15 15 20 30 35 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: (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 so-called nexus requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Sensorineural hearing loss may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). With specific regard to service connection claims for hearing loss, VA regulations stipulate that hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies is 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, 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 requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a bilateral hearing loss disability is not established. The Board acknowledges the Veteran’s is claiming entitlement to service connection for a hearing loss disability. He is certainly competent to relate any lay observations regarding his observations of hearing problems. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Nevertheless, the diagnosis of hearing loss is not capable of lay observation, as it requires audiometric findings to diagnose this disability. In the present case, there are no audiometries of record showing that the Veteran has ever had hearing loss considered a disability for VA purposes, and VA examination in March 2018 rules out a hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385. Accordingly, the claim is denied. Gilbert, supra. 2. Entitlement to service connection for a left foot disability. 3. Entitlement to service connection for a right foot disability. The Veteran asserts that he has a disability of each foot, incurred in, or attributable to service. 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). The question for the Board is whether the Veteran has a current 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 a left foot or a right food disability 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 Board notes the case of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. However, the record before the Board contains no reports, lay or otherwise, regarding any pain or functional impairment of the feet. While the Veteran may believe that he has a current diagnosis of left foot and right foot disabilities, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which fails to show that the Veteran has had a left foot or right foot disability at any time during or approximate to the pendency of this claim. Accordingly, the claim is denied. REASONS FOR REMAND Under the AMA, the Board must remand to the Agency of Original Jurisdiction (AOJ) to correct pre-decisional duty to assist errors (including when the AOJ failed to make reasonable efforts to obtain VA treatment records or relevant federal or private treatment records, failed to obtain a VA examination, or provided an inadequate VA examination or opinion). 38 C.F.R. § 20.802(a) (effective February 19, 2019). 1. Entitlement to service connection for sinusitis is remanded. 2. Entitlement to service connection for allergic rhinitis is remanded. 3. Entitlement to service connection for COPD and chronic bronchitis, claimed as breathing problems, residuals of pneumonia, is remanded. Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it “takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran’s prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). In March 2018, VA examined the to address the etiology of his claimed sinusitis, allergic rhinitis, COPD and chronic bronchitis. A review of the record shows that the Veteran was afforded a VA examination specifically addressing respiratory conditions. See March 14, 2018, VA Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) Disability Benefits Questionnaire (DBQ). The Veteran was not provided a separate physical VA examination to specifically address his sinusitis and rhinitis claims, although the respiratory DBQ mentions these claims. Although the Veteran was not apparently provided a separate physical examination to address the sinusitis and rhinitis claims, the RO requested etiological opinions on all three claimed disabilities. In response to the RO’s request, a VA examiner stated that the disabilities were less likely than not “incurred in or caused by the claimed in-service injury, event or illness.” The examiner reasoned that the Veteran’s symptoms were “subjective only,” objective examination was normal, and there was “no objective evidence of a chronic condition.” Even though the examiner did not assess any disability, the examiner further stated that “[a] nexus has not been established.” Notably, the pulmonary DBQ documents assessments of both COPD and chronic bronchitis. The examinations and opinions are insufficient. While the Veteran was afforded a VA examination to address his claim of entitlement to service connection for a lung disability, the examiner’s opinion is inadequate not only because there is objective evidence of COPD and chronic bronchitis, but also because the opinion is so vague as to be meaningless. Moreover, the Veteran was not afforded a VA physical examination to address his claims of entitlement to service connection for sinusitis and allergic rhinitis, and the examiner’s opinion is too vague to discern whether it relates to sinusitis and/or allergic rhinitis. Accordingly, the claims are remanded. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed sinusitis. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that sinusitis, allergic rhinitis, or any other diagnosed condition, was incurred in service, or is otherwise attributable to an in-service injury, event or disease. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s COPD, chronic bronchitis or any other possible pulmonary disability. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. (Continued on the next page)   Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that COPD, chronic bronchitis, or any other assessed pulmonary disability, was incurred in service, or is otherwise attributable to an in-service injury, event or disease. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.