Citation Nr: 21004000 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-13 587 DATE: January 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bladder disorder is remanded. FINDING OF FACT The Veteran does not have current hearing loss in either ear to an extent recognized as a disability for VA purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 31, 1973 to September 4, 1973. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claims on appeal for further development in November 2019. Notably, during the pendency of this appeal, an August 2020 rating decision awarded service connection for tinnitus. This issue is accordingly not in appellate status. 1. Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 Veteran indicates that his hearing loss is the result of exposure to acoustic trauma while in service. His in-service noise exposure is not in dispute. However, the Board finds that service connection for bilateral hearing loss is not warranted because no current hearing disability exists. The United States Court of Appeals for Veterans Claims has held that the current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Neither of these criteria is met in this case. The Veteran filed his claim for service connection for hearing loss in June 2014, and there is no evidence of a diagnosis of hearing loss for VA purposes in the evidence dated just prior to or at the time of the filing of his claim. The Veteran was afforded a VA examination in February 2020. Speech audiometry revealed a Maryland CNC speech discrimination score of 94 percent in the right ear and 96 percent in the left ear, and revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 15 30 35 LEFT 20 20 20 30 35 These findings do not demonstrate bilateral hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. Moreover, given the lack of current hearing loss, to include within the one-year period following service separation, presumptive service connection is not available. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). To the extent the Veteran asserts that he has bilateral hearing loss, although he is competent to report the symptoms he observes, such as decreased hearing ability, he is not competent to report that he has a hearing loss disability for VA purposes, because such a determination requires specific audiometric findings. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, as the first element of service connection is not met at any point during the appeal period, the claim fails on this basis alone. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). REASONS FOR REMAND 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to service connection for a bladder disorder is remanded. Remand is warranted, as the February 2020 VA examiner’s opinions are inadequate. Specifically, regarding the back disability, the examiner based her negative opinion on the lack of back pain documented evidence in the Veteran’s treatment records and did not discuss his reports of continuity of back symptoms since service. Regarding the Veteran’s bladder disorder, the examiner determined that the Veteran’s frequent urination was associated with his diabetes but did not consider his diagnosis of benign prostatic hyperplasia (BPH) and whether it was service-related. Accordingly, addendum opinions are necessary on remand. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Refer the claims file to an examiner other than the February 2020 VA examiner for preparation of an addendum opinion addressing the etiology of the Veteran’s back disability. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed back disability had its onset in or is otherwise related to service. In addressing this question, the examiner must discuss and assume as true the Veteran’s reports of injuring his back from falling off pull-up bars and continuous back symptomology since service (see Board Hearing Transcript at 7-11), and determine, based on the same, whether a nexus between the Veteran’s back disability and service is “medically plausible.” Failure to consider the Veteran’s lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. 2. Refer the claims file to an examiner other than the February 2020 VA examiner for preparation of an addendum opinion addressing the etiology of the Veteran’s BPH. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed BPH had its onset in or is otherwise related to service, to include as a result of the documented August 1973 urinary tract infection therein. In addressing this question, the examiner must discuss and assume as true the Veteran’s reports of continuous urinary urgency symptomatology since service (see Board Hearing Transcript at 12-14), and determine, based on the same, whether a nexus between the Veteran’s BPH and service is “medically plausible.” Failure to consider the Veteran’s lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.