Citation Nr: 21066790 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-23 357 DATE: November 2, 2021 ORDER Service connection for left hearing loss is denied. REMANDED Entitlement to service connection for a back condition is remanded. FINDING OF FACT The Veteran does not currently have, nor has he had during or proximate to the period on appeal, left ear hearing loss for VA purposes in accordance with 38 C.F.R. § 3.385. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1972 to June 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge at a videoconference hearing in October 2019 where he provided testimony regarding his claimed disabilities. A transcript is in the record. The Board remanded this matters in September 2020. At that time, the Board also remanded the issues of service connection for flat feet, and left and right ankles. An August 2021 rating decision granted service connection for bilateral pes planus, left and right ankles, and right ear hearing. As such, those matters have been granted in full and are no longer on appeal. Service connection for left hearing loss is denied. The Veteran contends that his bilateral hearing loss was incurred during service as a result of lack of hearing protection at the rifle range and working around airplanes and jets. See Hearing Transcript received 10/18/2019 at page 5. As noted above, an August 2021 rating decision, granted service connection for right ear hearing loss; therefore, the Board will consider service connection for left ear hearing loss, which is still on appeal. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 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 disability of impaired hearing in the left ear under 38 C.F.R. § 3.385 and has not had one at any time during the pendency of the claim or recent to the filing of the claim. On remand, the Veteran was provided a new VA examination in June 2021. The June 2021 VA examiner evaluated the Veteran and determined that, while he had a diagnosis of sensorineural hearing loss his Puretone test results and Maryland CNC Word List speech recognition score, in decibels, did not meet VA's definition of impaired hearing to be considered a disability since his auditory threshold at 500, 1000, 2000, 3000, and 4000 Hertz were 25 decibels or below. See 38 C.F.R. § 3.385. Additionally, the Veteran's Maryland CNC Test was greater than 94 percent. Id. June 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 20 30 55 32.5 98% LEFT 15 25 25 25 22.5 98% Prior to the June 2021 VA examination, the Veteran was provided an examination in June 2014. The Puretone test results and Maryland CNC Test results yielded left ear hearing loss test results that were not a disability for VA purposes. June 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 20 20 30 21 100% LEFT 10 20 20 20 18 96% While the Veteran believes his left ear hearing loss qualifies as a disability for VA purposes, he is competent to report decreased hearing. However, the Veteran is not competent to provide an interpret audiological findings. The Board places more weight the competent and probative objective test results, provided by an audiologist, show that the Veteran's hearing in his left ear does not meet the definition of a disability under applicable VA regulation. Therefore, the relevant, competent evidence does not show that the Veteran has a current disability as required for service connection. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Accordingly, service connection for left ear hearing loss is denied. REASONS FOR REMAND Entitlement to service connection for a back condition is remanded. The Veteran contends that his current back condition was caused by wear and tear from his Marine Corps service. See Hearing Transcript received 10/18/2019 at page 7. The Veteran asserts that there was no specific trauma incident during his service. Id. Alternatively, during the hearing, the Veteran stated that his condition stemmed from his now service-connected flat feet. Id. at page 8. Although the Veteran was provided an examination in July 2021, there was no medical opinion attached to the examination. This report shows a diagnosis of degenerative arthritis, spinal fusion, spinal stenosis, degenerative disc disease other than intervertebral disc syndrome, and left side radiculopathy. Additionally, the Veteran's alternate theory of entitlement, secondary service connection due to his flat feet disability was not discussed. As noted above, the Veteran is now service-connected for bilateral pes planus. Since the Board cannot make medical determinations, a remand is warranted for an addendum medical opinion that considers the Veteran's contentions. This matter is REMANDED for the following action: Obtain an addendum opinion from the July 2021 VA examiner, Dr. D.G.W., regarding: a) Whether the Veteran's back condition is at least as likely as not related to wear and tear from his Marine Corps service, to include back pain during his service. b) Whether the Veteran's back condition is proximately due to his service-connected flat feet disability, or another other service-connected disability. c) Whether the Veteran's back condition is aggravated beyond its natural progression by his service-connected flat feet disability, or another other service-connected disability. The examiner is to provide a comprehensive rationale for all opinions. Any negative opinion regarding the relationship of any current diagnosis to service cannot be based solely on the lack of evidence of a disability in the service treatment records. If the examiner is unable to provide an opinion without resorting to speculation, then state whether the inability is due to the limits of their knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.