Citation Nr: 21063248 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-27 297 DATE: October 13, 2021 ORDER Entitlement to service connection for hearing loss in the right ear is denied. REMANDED Entitlement to service connection for a sinus condition, to include allergic rhinitis and a deviated septum is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had right ear hearing loss for VA purposes, at any time during or proximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for hearing loss in the right ear have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from October 1992 to October 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal of the November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before a Veterans Law Judge in March 2020. The Veterans Law Judge, who conducted the hearing, has since retired. The hearing transcript is associated with the claims file. The Veteran was provided notice of the Veterans Law Judge's retirement in April 2021. In May 2021, the Veteran elected not to have an additional Board hearing. In August 2021, the Veteran also waived his right to have his case remanded to the AOJ for review of the additional evidence that was submitted in his appeal. In June 2020, the Board remanded this appeal for more development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the remanded issues, and there is no indication that evidence developed as part of those actions may be relevant to the issue denied in this decision. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to service connection for hearing loss in the right ear The Veteran contends his right ear hearing loss is related to military service. Specifically, the Veteran contends that his April 2014 VA examination was inadequate because he was told to hit the button even if he thought he heard something so that he would push the button. The Veteran's military occupational specialties (MOS) were as a motor transport mechanic and an assault man. The Veteran's duties as an assault man were highly probable for hazardous noise exposure, and his duties as a motor transport mechanic had a moderate probability for hazardous noise exposure. Additionally, the service treatment records show that the Veteran was in the hearing conservation program. 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. 38 C.F.R. § 3.385. In this case, the record does not show that the Veteran had right ear hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385, at any time during the appeal period or in proximity to the claim for service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran's service treatment records show that the Veteran has not incurred hearing loss to the levels required for VA purposes. In April 2014, the Veteran was afforded a VA examination. The audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 20 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. The evidence of record, does not reveal a right ear hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385. As such, the evidence does not show that the Veteran has been diagnosed with a right ear hearing loss disability for VA purposes. In October 2020, the Veteran was afforded a VA examination. The audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 30 25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear. The evidence of record, does not reveal a right ear hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385. As such, the evidence does not show that the Veteran has been diagnosed with a right ear hearing loss disability for VA purposes. The Board acknowledges the Veteran's contention that he has right ear hearing loss that is etiologically attributable to in-service noise exposure. The Veteran, as a lay person, is competent to report that he has difficulty hearing; however, he is not competent to diagnose a hearing loss disability for VA compensation purposes. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). Diagnosing a hearing loss disability for VA purposes requires medical and diagnostic testing. The Veteran has not been shown to possess the medical expertise or knowledge to diagnose a disability such as hearing loss. Therefore, his contentions do not constitute competent evidence of a current right ear hearing loss disability for VA purposes, and do not weigh against the probative value of the relevant objective audiological test results of record. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, without evidence of a current right ear hearing loss disability for VA purposes, the Board need not address the other elements of service connection for a right ear hearing loss disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to service connection for a sinus condition, to include allergic rhinitis and a deviated septum is remanded. The Veteran contends that his sinus condition, to include allergic rhinitis and a deviated septum is related to active service. In March 2020, the Veteran testified at a Board hearing. The Veteran's representative indicated that the Veteran received treatment for sinus and congestion problems specifically in November of 1995 and January 1996. The Veteran testified that he was diagnosed with a deviated septum after he was given a CT. He testified that the right side of his nose was closed. The Veteran testified that, I was in the infantry so we are always shooting, we are always training and we are always fighting and you get hit on the nose, on the face or whatever you get hit you just kind of wipe the blood and go. It is one of those things, the mission is first. The Veteran testified that he has had sinus problems since service and he cannot sleep more than three to four hours and it just keeps waking him up, he feels like he cannot breathe. In November 2020, the Veteran was afforded a VA examination for his sinus condition. The Veteran reported having difficulty sleeping and his spouse reported that the Veteran snored. His primary treatment provider diagnosed the Veteran with a deviated septum. The Veteran reported that he boxed during service and had "bloody noses" but did not break his nose or have a known injury to the nose. The November 2020 VA examiner diagnosed the Veteran with a deviated septum but no other nose, throat, larynx or pharynx conditions. The examiner noted that the deviated septum was traumatic. The examiner opined that the Veteran's sinus condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner indicated that there are no service records that showed a complaint for this condition. In April 2021, VA secured an addendum opinion to address the Veteran's treatment records that demonstrated that the Veteran had a stuffy and running nose. The VA examiner opined that the Veteran's sinus condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner indicated that the records provided show an upper respiratory infection and not allergic rhinitis. The examiner indicated that both service treatment dates were recurrent infections. The Board finds that the examiner did not provide an adequate opinion addressing the Veteran's lay statements that while he was not treated during service that he may have injured his nose by boxing or training. The Veteran stated that he has had this condition since service, and the November 2020 VA examiner indicated that the Veteran's deviated septum is traumatic. Thus, an addendum opinion is necessary to secure an opinion determining if the Veteran's diagnosed deviated septum condition is related to service. The matter is REMANDED for the following action: 1. Obtain an addendum opinion to clarify the nature and etiology of the Veteran's claimed sinus condition, to include allergic rhinitis and a deviated septum that has been present during the period on appeal. 2. After reviewing the record, to include the Veteran's lay testimony, and this remand, the examiner is asked to address the following: Is it at least as likely as not (a 50 percent probability or greater), that any sinus condition, to include allergic rhinitis and/or a deviated septum, was caused by service, or is otherwise related to the Veteran's military service? 3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. Specifically, the examiner must note and address that the Veteran stated that, "I was in the infantry, so we are always shooting, we are always training and we are always fighting and you get hit on the nose, on the face or whatever you get hit you just kind of wipe the blood and go. It is one of those things, the mission is first." 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). (Continued on the next page) 5. Thereafter, readjudicate the issue on appeal, considering all evidence of record. If the benefit sought is not granted to the fullest extent, issue a Supplemental Statement of the Case and afford the Veteran and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.