Citation Nr: 21066833 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-08 876 DATE: November 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right foot disability, to include as secondary to service-connected disability. FINDING OF FACT The Veteran does not have a current disability of bilateral hearing loss for Department of Veterans Affairs (VA) compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1111, 5107(b); 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1982 to October 1985 and from July 1998 to December 2015. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision by the Agency of Original Jurisdiction (AOJ of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned at a November 2019 Board hearing. The Board previously remanded these matters to the AOJ for additional development in February 2020. 1. Service Connection for Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss, and it is related to his service. Alternately, the Veteran had contended that his hearing loss is proximately due to or aggravated by his service-connected tinnitus In order to establish direct service connection, three elements must be established. These elements are: "(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," which is often referred to as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability, there is no valid claim for service connection; an appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). In addition, certain chronic diseases, including sensorineural hearing loss, are presumed to have been incurred in or aggravated by service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Concerning hearing loss, for VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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 Board finds that the Veteran does not have a current disability of hearing loss for VA compensation purposes. In April 2016, the Veteran underwent a VA audiological examination. The Veteran's puretone threshold measurements were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 10 10 LEFT 5 10 15 10 10 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 100 in the left ear. In June 2020, the Veteran underwent another VA audiological examination. The Veteran's puretone threshold measurements were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 20 10 20 LEFT 5 10 10 15 5 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear. Under VA regulations, the Veteran's symptoms are not considered a hearing loss disability. There is no other medical evidence in the record that the Veteran has a hearing loss for VA purposes. The Veteran does not have auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz at or above 40 decibels nor does the Veteran have auditory threshold at or above 26 decibels for three of the tested frequencies. Finally, the Veteran's speech discrimination score was at worst 96 in the right ear and 94 in the left, which under VA regulations, is not considered hearing loss. The Board considered his November 2019 Board testimony that he had difficulty hearing and that it had gotten worse since the April 2016 VA examination. However, although the Veteran is competent and credible in his statement that he had difficulty hearing, he is not competent to determine the exact severity of his hearing loss as it applies to VA regulations. Therefore, the Veteran does not meet the threshold for a hearing loss disability under VA regulations. See 38 C.F.R. § 3.385. The preponderance of the evidence is against a finding that the Veteran has bilateral hearing loss disability by VA standards. See 38 C.F.R. § 3.385. Accordingly, as there is no competent evidence of a current disability, a discussion of the remaining elements required to establish service connection for direct or secondary service connection is not warranted, and the claim must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching such decision, 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 bilateral hearing loss, that doctrine is not applicable. 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, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right foot disability to include as secondary to service-connected disability is remanded. The Veteran contends that he has a right foot disorder, and it is related to service or to service-connected disability. In February 2020, the Board remanded this matter in order to determine whether the Veteran's claimed symptoms foot pain constituted functional impairment and if that functional impairment was etiologically related to service. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). In June 2020, the Veteran underwent a VA foot examination. Upon examination the Veteran reported pain in his right foot. The Veteran noted chronic foot pain. The Veteran reported he walked with a limp and that bending, walking twisting motions aggravated his foot pain. The Veteran reported driving more than half an hour aggravated his pain. The Veteran reported flares-ups, which caused chronic foot pain, stiffness with radiation to his ankle in the morning, and muscle aches. The Veteran reported he had functional loss or functional impairment of his right foot. The Veteran reported that walking up and down stairs caused pain to flare, uneven ground caused pain, and going up and down ladders was difficult. The examiner found that the Veteran's right foot disability impacted his ability perform occupational tasks. The examiner opined that the Veteran's right foot condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner reasoned that the Veteran's symptoms were subjective only and the objective examination was normal. The examiner noted there was no objective evidence of a chronic condition. The examiner noted that although there is a history of a right foot contusion there was no current objective findings to substantiate a permanent residual impairment or disability. In August 2020, the June 2020 examiner provided an addendum medical opinion. The examiner stated a review of the service record showed the Veteran had an ankle sprain on one occasion and upon separation stated he had chronic foot pain. The clinical radiographic examination was entirely normal. The examiner noted there was are no clinical or radiographic evidence or pathology to substantiae subjective complaints. The Board finds that the June 2020 VA medical opinion and August 2020 addendum medical opinion is not adequate for adjudication. The June 2020 examination report noted the examiner found that the Veteran's right foot disability impacted his ability to perform occupational tasks. However, the examiner's rationale for a negative nexus opinion appears to rely on the fact that the Veteran's symptoms were subjective with no objective evidence confirming these symptoms. The Board finds that as the examiner found functional impairment, the fact that the symptoms are subjective has little bearing on whether the symptoms were caused by his service. Therefore, a remand is required to obtain an addendum medical opinion to determine whether the Veteran's foot pain that is productive of functional impairment is etiologically related to service. Finally, the Veteran's representative argued in an October 2021 informal hearing presentation (IHP), that the Veteran's service-connected bilateral ankle and knee disabilities caused or aggravated his right foot pain. As such, upon remand for an addendum medical opinion, the examiner must determine whether the Veteran's foot pain was caused or aggravated by a service-connected disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate clinician to determine the etiology of the Veteran's right foot pain that is productive of functional impairment. The examiner must provide the following opinions: (a.) Whether the Veteran's right foot pain is at least as likely as not related to any in-service event, event, injury, and/or illness. i. The examiner must address the Veteran's October 2015 separation examination which noted chronic foot pain. ii. The examiner must address the Veteran's September 2010 service treatment note that indicates he injured his foot on a rock. (b.) Whether the Veteran's right foot pain resulting in functional impairment is at least as likely as not caused by service-connected disability to include bilateral knee and bilateral ankle disabilities. (c.) Whether the Veteran's right foot pain resulting in functional impairment is at least as likely as not aggravated by service-connected disability to include bilateral knee and bilateral ankle disabilities. (d.) The examiner must provide a complete rationale for all opinions. A rationale that the Veteran's right foot pain is subjective only will be deemed inadequate, as the June 2020 VA examiner found functional impairment in the Veteran's right foot. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.