Citation Nr: 21063948 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-66 280 DATE: October 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED The issue of entitlement to service connection for a bilateral knee condition is remanded. The issue of entitlement to service connection for a left ankle condition is remanded. The issue of entitlement to service connection for a low back condition is remanded. FINDING OF FACT The medical evidence of record does not demonstrate a bilateral hearing loss disability, as defined by VA regulations. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to July 1975, from December 1990 to May 1991, from November 1996 to July 1997, from February 2003 to September 2003, and from August 2008 to October 2009, with additional service in the Army Reserves and Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for the issues listed above. The Veteran timely perfected an appeal. See March 2016 Notice of Disagreement; November 2017 Statement of the Case; December 2017 VA Form 9. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been prepared and associated with the claims file. Service Connection for Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303(a). In general, service connection requires competent evidence showing: (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). 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 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 Veteran was afforded a VA audiological examination in July 2015, where pure tone thresholds, in decibels, were as follows: July 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 5 20 20 13.75 100% LEFT 15 10 5 15 11.25 100% These results do not meet the definition of hearing impairment, as defined by VA regulations. 38 C.F.R. § 3.385. Based on the foregoing, the Board finds that the Veteran does not have bilateral hearing loss as contemplated by 38 C.F.R. § 3.385. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA audiometric testing has not reflected auditory thresholds of 40 decibels or greater, or auditory thresholds for at least three of the relevant frequencies of 26 decibels or greater, or Maryland CNC speech recognition scores of less than 94 percent. See 38 C.F.R. § 3.385. In reaching this determination, the Board does not question the sincerity of the Veteran's reports of difficulty hearing and acknowledges that, as a lay person, he is competent to report that he has difficulty hearing. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board does find the Veteran credible as to his commentary regarding in-service noise exposure and current trouble hearing. Unfortunately, as a layperson, the Veteran does not have the requisite expertise to provide a competent opinion as to whether he has a current hearing loss disability in accordance with VA standards, as such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). Specifically, the results of an audiogram administered by a state-licensed audiologist is the only type of evidence deemed competent to show a hearing impairment for VA purposes. Here, the audiogram results show no such impairment. The Board notes that the Veteran testified during the July 2021 Board hearing that he would be submitting updated audiological results showing a current hearing loss disability. However, the Veteran did not submit any additional records, and the evidence does not otherwise show a worsening of his current hearing acuity. The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, it is the Veteran's responsibility to present and support a claim for benefits. See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In sum, absent any current diagnosis of a hearing loss disability in accordance with VA standards, an award of service connection for bilateral hearing loss is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for bilateral hearing loss, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND The Veteran contends that he has a bilateral knee condition, a left ankle condition, and a low back condition due to active duty and general wear and tear during his 30-plus year career in the Army Reserves. See July 2021 Hearing Transcript. Unfortunately, the majority of the Veteran's service treatment records are unavailable. In cases where a veteran's service treatment records are unavailable through no fault of a veteran, there is a heightened obligation on the part of VA to assist the claimant in the development of his case, explain findings and conclusions, and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991); 38 U.S.C. § 5107 (a); 38 C.F.R. § 3.303 (a). Here, the Veteran submitted a March 2011 Physical Profile form showing that he had a profile for back, leg, and hip pain. Additionally, he credibly testified during the July 2021 Board hearing that he had back, knee, and ankle pain during and immediately after his last deployment in 2009. To date the Veteran has not been afforded VA examinations. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159. In light of the March 2011 profile, the Veteran's testimony at the July 2021 Board hearing, and the fact that the Veteran's complete service treatment records are unavailable, the Board finds that he should be provided with VA examinations to determine the nature and etiology of his claimed disabilities. The Board also notes that there is an overall dearth of medical evidence currently associated with the claims file. In this regard, other than an October 2003 VA treatment record and a September 2014 VA treatment, there are no medical records associated with the claims file. The Board notes that VA has requested that the Veteran identify and/or submit private treatment records in support of his claim on multiple occasions. See January 2018 Subsequent Development Letter; July 2021 Hearing Transcript. On remand, the RO should obtain any outstanding VA treatment records, and the Veteran should be provided with one more opportunity to identify and/or submit any outstanding, relevant private treatment records. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Wood v. Derwinski, 1 Vet. App. 191 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The matters are REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers who have treated him for the issues on appeal. After the Veteran has signed the appropriate releases, those records not already on file should be obtained and associated with the claims folder. Additionally, obtain and associate with the Veteran's claims file all outstanding VA treatment records showing treatment for the issues on appeal. If no such records are located, this fact should be clearly documented in the claims file. 2. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his bilateral knee, left ankle, and low back conditions. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. After examining the Veteran and reviewing the claims file, the examiner should address each of the following: (a.) Render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed bilateral knee condition had its onset during service or is related to any in-service disease, event, or injury, to include the Veteran's reports of physically demanding duties during his numerous deployments and physically demanding training during his Reserve service. (b.) Render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed left ankle condition had its onset during service or is related to any in-service disease, event, or injury, to include the Veteran's reports of physically demanding duties during his numerous deployments and physically demanding training during his Reserve service. (c.) Render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed low back condition had its onset during service or is related to any in-service disease, event, or injury, to include the Veteran's reports of physically demanding duties during his numerous deployments and physically demanding training during his Reserve service. The examiner is advised that the majority of the Veteran's service treatment records are unavailable. Therefore, the examiner should carefully consider the Veteran's lay statements regarding the onset of his symptoms and continuous nature of his symptoms since service. The examiner should address the likelihood that in-service injuries such as the ones described by the Veteran could have caused any currently diagnosed bilateral knee, left ankle, and/or low back conditions. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resorting to mere speculation, the examiner should explain in full why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the Veteran's claim. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.