Citation Nr: 21071735 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-17 551 DATE: December 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's bilateral hearing did not manifest in service or to a compensable degree within one year thereafter and is not otherwise etiologically related to his military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board remanded the case for further development in April 2020. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that the appeal had also originally included the issues of entitlement to service connection for headaches, essential tremors, and tinnitus. However, during the pendency of the appeal, the agency of original jurisdiction (AOJ) granted service connection for those disabilities. See October 2020 and November 2020 rating decisions. The grant of service connection is considered a full grant of benefits sought. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Therefore, those issues are no longer on appeal before the Board. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. 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). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system (including sensorineural hearing loss) are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system (including sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purpose 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 these 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of hearing loss. In fact, a March 1967 separation examination found his ears and drums to be normal, and an audiogram revealed normal hearing. He also denied having a medical history of hearing loss at that time. To determine that a chronic disease was "shown in service," the disease entity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. The service treatment records do not show that the Veteran had hearing loss during service. Therefore, chronicity is not established in service. Moreover, the evidence does not show that hearing loss manifested to a compensable degree within one year of the Veteran's military service. Following his separation from service, there is no indication in the record to suggest that the Veteran sought treatment for hearing loss, and there is no evidence of the disorder within one year of his military service. Indeed, the Veteran did not complain of hearing loss for many years following his separation from service. In addition, a May 1974 Army Reserve audiogram showed normal hearing bilaterally, and a May 2014 VA examination found that he did not have a current hearing loss disability for VA purposes. The Board does acknowledge the Veteran's lay statements that his hearing loss began in service. See February 2020 hearing transcript. Laypersons are competent to report observable symptoms in service and thereafter. While laypersons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran can attest to factual matters of which he has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, supra. In this case, the Board finds that the Veteran is competent to state that he has had hearing problems since his military service. However, his allegations are inconsistent with the contemporaneous record. As previously discussed, there is no evidence of any complaints, treatment, or diagnosis in service, and he denied having a medical history of ear trouble or hearing loss during his March 1967 separation examination. A clinical evaluation at that time also found his ears and drums to be normal, and an audiogram revealed normal hearing, which provides affirmative evidence showing that the Veteran did not have hearing loss at that time of his separation (as opposed to a mere absence of evidence). A May 1974 Army Reserve physical examination also found the Veteran's ears and drums to be normal, and his hearing was normal at that time. On the May 1974 report of medical history, he again denied any past or present ear trouble or hearing loss. He did, however, indicate past or present sinusitis and fainting spells during injections. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). In addition, a May 2014 VA examination found that the Veteran did not have a current hearing loss disability for VA purposes. That report again provides affirmative evidence showing that the Veteran did not have continuity of symptomatology since service. For these reasons, the Board finds that the Veteran's reported onset and history of hearing loss is not reliable or credible. Therefore, the Board concludes that his hearing loss did not manifest in service or for many years thereafter. Nevertheless, the Board does note that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has claimed that he had noise exposure during his period of service and that this was the injury sustained from which his hearing loss resulted. The Veteran is considered competent to relate a history of noise exposure during service, and there is no reason to doubt the credibility of his statements regarding military noise exposure. See 38 C.F.R. § 3.159(a)(2). In addition, the post-service medical records show that the Veteran has been diagnosed with bilateral hearing loss by VA standards. See 38 C.F.R. § 3.385. Thus, the remaining question is whether the Veteran's current bilateral hearing loss is related to his noise exposure in service. A May 2014 VA examination found slight hearing loss in the left ear at 4000 Hertz, but was otherwise normal. The testing results did not meet the requirements of 38 C.F.R. § 3.385. The examiner also opined that any hearing loss was not at least as likely as not caused by or a result of an event during service. He explained that both the enlistment and separation audiograms indicated normal hearing in both ears with no shift in hearing between testing. He also noted that a May 1974 examination had found normal hearing both ears and commented that no shift occurred since any prior test. The VA examiner did acknowledge that the Veteran had military noise exposure from gun fire, mortars, tanks, and explosions; however, he also noted that the Veteran had post-service occupational noise exposure from his work as a factory mechanic for 40 years and recreational noise exposure during lawn care and motorcycle use. Given that there was no shift in the Veteran's hearing in seven years following his military service, had normal hearing in service and many years thereafter, and his extensive occupational noise exposure since service, the examiner concluded that it is less likely than not that the Veteran's hearing loss is related to his military service. Nevertheless, the Veteran had reported that his hearing had worsened since the May 2014 VA examination. The examiner also did not address or explain whether delayed-onset hearing loss could still be related to the Veteran's military noise exposure. Therefore, the Board remanded the case for an additional VA examination and medical opinion. Thereafter, an October 2020 VA examination did reveal bilateral hearing loss as defined by 38 C.F.R. § 3.385. However, the examiner opined that the disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She noted that the Veteran had normal hearing during his enlistment and separation examinations without any significant threshold shifts, which provides evidence that his hearing did not decrease during his military service. Therefore, she stated that military noise did not damage his hearing. The examiner acknowledged the Veteran's report that his trouble with hearing started in 1964 when he entered the military, but she reiterated that no hearing loss was found for either ear. In addition, the examiner explained that, if hearing is going to decrease from military noise, it would do so within two years of leaving the military. She noted that, in this case, the Veteran's hearing loss in both ears had its onset over 50 years after his military service and that he has only mild sensorineural hearing loss. She commented that a pattern of a noise-induced hearing loss is one in which hearing sharply decreases in the high frequencies, which the Veteran does not have. Therefore, the examiner found no proof for delayed onset hearing loss due to military noise exposure and concluded that the Veteran's hearing loss is not likely to be caused from acoustic trauma of loud noise from the military. The Board acknowledges that, in November 2015, a private audiologist noted the Veteran's reported history of significant noise exposure in service from rockets, grenades, and artillery fire. A physical examination of his ears, nose and throat revealed normal findings, and an audiological evaluation revealed speech reception thresholds of 10 decibels bilaterally with 100 percent speech discrimination bilaterally when tested at 40 decibels. Puretone thresholds were within normal limits for each ear with a mild notch at 4000 Hertz in each ear, consistent with a mild noise-induced hearing loss. See November 2015 private treatment records from P.H., M.D. (initials used to protect privacy). To the extent that the November 2015 report can be construed as a positive nexus opinion, the Board finds it is entitled to little probative weight. There is no indication that Dr. P.H. reviewed the claims file, including the service treatment records showing that the Veteran had normal hearing. Indeed, he did not account or address the delayed-onset of the Veteran's current hearing loss or provide any rationale other than noting a mild notch. There is also no indication that he considered the reported post-service occupational and recreational noise exposure, including work in a factory for 40 years. In contrast, the Board finds that the October 2020 VA medical opinion has very high probative value. The VA audiologist reviewed the claims file, relied on an accurate factual premise, and provided a thorough rationale for her opinion. The Board has also considered the Veteran's lay statements indicating that his current hearing loss is related to his military service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of his current hearing loss falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to opine on these matters, the Board finds that the specific, reasoned opinion of the October 2020 VA examiner is of greater probative weight than the more general lay assertions in this regard. She reviewed the claims file, including the Veteran's own reported history, and she has training, knowledge, and expertise on which she relied to form her opinion. She also considered the medical history and provided a thorough rationale for the conclusion reached. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board concludes that service connection is not warranted. REASONS FOR REMAND The Board notes that the Veteran is currently assigned a 70 percent evaluation for posttraumatic stress disorder (PTSD), a 50 percent evaluation for essential tremor of the right radial nerve, a 40 percent evaluation for essential tremor of the left radial nerve, a 30 percent evaluation for tension headaches, a 20 percent evaluation for essential tremor of the left 11th cranial nerve (head tremor), a 20 percent evaluation for essential tremor of the right 11th cranial nerve (head tremor), a 10 percent evaluation for a pharynx disorder with speech and swallowing difficulty, and a 10 percent evaluation for tinnitus. His combined evaluation for his service-connected disabilities is 80 percent from March 8, 2013, and 100 percent since October 18, 2013. The RO determined that the TDIU claim was effectively moot because the Veteran has a total evaluation of 100 percent for his service-connected disabilities from October 18, 2013, which is the date of claim. See December 2020 supplemental statement of the case (SSOC). Nevertheless, the presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). The Court has held that a separate TDIU rating must be predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability, separately rated at 60 percent or more, in order to warrant special monthly compensation under 38 U.S.C. § 1114(s). Id. Therefore, if the Veteran is entitled to TDIU based on a single disability since October 18, 2013, he could meet the criteria for a SMC based on statutory housebound status if he has another separate disability rated at 60 percent or more. The matter is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers not already of record who have provided treatment for his service-connected disabilities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should schedule the Veteran for a VA examination to determine the effects of his service-connected disabilities and any resulting impairment. The examiner should address how the Veteran's service-connected disabilities alone result in functional impairment and comment on the Veteran's ability to function in an occupational environment. If possible, he or she should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. These findings should not consider any nonservice-connected disabilities. A written copy of the report should be associated with the electronic claims folder. 3. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.