Citation Nr: 21000897 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-27 072 DATE: January 6, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for residuals of a lower back injury is denied. REMANDED Entitlement to service connection for lung cancer is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had bilateral hearing loss at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that a low back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for residuals of a low back injury are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1977 to February 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014 and March 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in August 2019. Unfortunately, a complete hearing transcript was unable to be obtained due to audio malfunctions with the recording system. The Veteran did not respond to the September 2020notification letter within the required 30 days, thus another hearing will not be provided. Service Connection 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). 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks entitlement to service connection for bilateral hearing loss, which he has asserted arose as a result of in-service exposure to acoustic trauma caused by his service as a hull maintenance technician. The Veteran reports recurrent exposure to noise. While the Board concedes that the Veteran was exposed to significant noise during his period of service, the evidence does not demonstrate that the Veteran has had a hearing loss disability pursuant to VA regulation during the period on appeal; accordingly, service connection for bilateral hearing loss must be denied. The Court has held that Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving pure-tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. 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 Veteran was afforded a VA examination in September 2014. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 25 20 LEFT 15 15 20 25 15 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss 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 that the 2014 audiological evaluation does not demonstrate the presence of a hearing loss disability for VA purposes. As discussed above, “[i]n the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. at 225. Significantly, the Veteran is not shown by the competent evidence of record to have a hearing loss disability in accordance with 38 C.F.R. § 3.385 at any time during the pendency of the appeal. While the Veteran is competent to report decreased hearing acuity subsequent to his period of active service, the diagnosis of a hearing disability for VA purposes, however, is based on objective audiometric testing and is not simply determined based on mere personal observation by a layperson. See 38 C.F.R. § 3.385. Thus, the question of whether the Veteran has a hearing disability for VA purposes does not lie within the range of common experience or common knowledge but requires special experience or special knowledge in the field of audiology, including audiometric testing. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). VA treatment records do not document a diagnosis of a hearing disability for VA purposes. As no competent evidence has been provided indicating that the Veteran has had a hearing loss disability for VA purposes during the appeal period, the Board finds that the Veteran’s claim for hearing loss must be denied. Brammer v. Derwinski, 3 Vet. App. at 225. As the preponderance of the evidence is against the Veteran’s claim for service connection, there is no reasonable doubt to be resolved, and the claim for service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 2. Entitlement to service connection for a lower back injury The Veteran seeks service connection for residuals of a lower back injury. The Veteran has not provided any specific argument or contentions with respect to this claim, beyond the assertion that it is related to service. 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. Service treatment records are silent for any complaint, diagnosis, or treatment of the back. The Veteran’s service treatment records show a normal spine examination at the time of the enlistment examination in December 1976. No acute back injuries were noted in service. Service treatment records show a normal spine examination at the time of the separation examination in January 1981. The Veteran reported occasional “creaky” joints, but he also denied recurrent back pain in his report of medical history. Post-service VA medical records reflect a complaint of back pain in May 2014. January 2013 MRI imaging of the lumbar spine showed mild multilevel degenerative disc and facet disease and mild levoscoliosis. The only relevant current diagnosis found in the VA medical records is mild degenerative disc and facet disease, and mild levoscoliosis. The Board concludes that, while the Veteran has a diagnosis of degenerative disc and facet disease, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran believes his low back disability is related to service. However, the Veteran has not reported a continuity of symptomology since service, and the evidence of record does not support such a theory of entitlement. Moreover, he is not competent to provide a diagnosis or an etiological link to service. The issue is medically complex as it requires knowledge of interaction between multiple body systems. While the September 2014 VA examination shows the Veteran had some training in nuclear medicine, the record does not demonstrate that he has the medical training or clinical experience to make the necessary medical determination involved in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Veteran has not been afforded a VA examination to assist him in substantiating the claim as there is no competent evidence indicating that a nexus between that disability and active military service may exist required to trigger VA’s duty to assist. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). In sum, the evidence indicates that the Veteran has a low back disability, but there is no nexus between this disability and his active military service. Accordingly, service connection is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine and finds it is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for lung cancer is remanded. The Veteran raised the theory that his lung cancer is related to exposure to ionizing radiation during active service, in the first instance, at the Board hearing held in August 2019. In cases involving exposure to ionizing radiation, VA has additional specific duties regarding the assistance due to claimants. Specifically, 38 C.F.R. § 3.311 states that in all claims in which it is established that a radiogenic disease (such as lung cancer) first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period of time, and it is contended that a disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose. 38 C.F.R. § 3.311 (a)(1). VA’s duty to assist includes requesting any available records concerning the Veteran’s exposure to radiation and forwarding all such records to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311 (a)(2)(iii). Lung cancer is a radiogenic disease. The Veteran’s service treatment records include record logs of occupational exposure to ionizing radiation beginning in October 1978 and ending in November 1978. Hence, the case must be referred to the Under Secretary for Health for a dose estimate pursuant to 38 C.F.R. § 3.311 (a)(2)(iii), taking into account the Veteran’s statements, the information from the Record of Exposure to Ionizing Radiation, service treatment and personnel records. 2. Entitlement to a TDIU is remanded. As the Board has remanded the claim for service connection for lung cancer, adjudication of the claim of entitlement to a TDIU is deferred. The matters are REMANDED for the following action: Obtain a dose assessment in accordance with 38 C.F.R. § 3.311 (a)(2)(iii). This should include obtaining a dose estimate from the Under Secretary for Health, and then, if appropriate, forwarding the dose estimate to the Under Secretary for Benefits pursuant to 38 C.F.R. § 3.311(c) and an opinion. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.