Citation Nr: 21074956 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-61 785 DATE: December 16, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for a left leg condition, as secondary to service-connected post-operative rupture of the right achilles tendon, is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran has bilateral hearing loss that is related to any incident of service or manifested to a compensable degree within one year following separation from service. 2. The preponderance of the evidence weighs against a finding that the Veteran's left leg condition was caused or aggravated by the service-connected post-operative rupture of the right achilles tendon. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria to establish service connection for a left leg condition, as secondary to service-connected post-operative rupture of the right achilles tendon, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1981 to January 1986. This matter was before the Board of Veterans' Appeals (Board) in July 2021 when the issues were remanded to obtain outstanding VA medical records and for VA examinations. In accordance with the July 2021 Board remand instructions, outstanding VA medical records were associated with the claims file and the Veteran was afforded VA examinations in August 2021. Further development having been completed; the matter is once again before the Board. The issue of service connection for bilateral hearing loss will be denied because the evidence does not show that the condition is related to the Veteran's service. The issue of service connection for a left leg condition, as secondary to service-connected post-operative rupture of the right achilles tendon, will be denied because the evidence does not show that the Veteran's left leg condition was caused or aggravated by his service-connected post-operative rupture of the right achilles tendon. Service Connection Service connection may be granted for a current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). In deciding an appeal, the Board must first determine the competency of evidence. "Competency" means that the person who makes the statement is qualified by training, education, experience through an occupation, or other reason to make the statement. For example, medical professionals are generally competent through training and experience to express opinions about whether a disability was caused by service. Generally, the opinions of medical professionals such as doctors, psychiatrists, nurses, and others who work in the health care field may be competent because they apparently have specialized training, as shown in the detail of their reports and knowledge of the facts in individual cases. Medical professionals may also report various findings of laboratory studies and testing that could be evidence in a claim, such as the level of hearing impairment, blood tests, range of motion testing in joint pain, etc. If a person making a statement is not medically trained (i.e., a "layperson"), the Board must determine in individual cases whether a veteran's particular disability is the type where a layperson's statement may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed through senses and not medical expertise. Lay testimony is competent to establish the presence of observable symptoms, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. If the Board finds that the evidence is competent, it must then determine whether the evidence is credible. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable. Whether a statement is credible is decided after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). VA must determine whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Service connection for bilateral hearing loss is denied. The Veteran contends that he has bilateral hearing loss that is related to his service, to include in-service exposure to acoustic trauma. For the following reasons, service connection is not warranted, and the claim is denied. Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran served as an aircraft maintenance specialist throughout his service, and he is presumed to have in-service exposure to acoustic trauma. During the March 2010 VA audiological examination, the Veteran reported that his hearing loss began in 1986 and that he believes that in-service noise exposure contributed to his current hearing loss. The examiner noted that the Veteran had normal hearing at service entrance, normal hearing in-service, and normal hearing at service separation. The examiner noted that the Veteran has mild sensorineural hearing loss bilaterally, and the Maryland CNC speech recognition score was 100 percent bilaterally. In terms of occupational impact, the examiner noted that the Veteran has difficulty hearing conversation. In terms of the impact on his daily life, the examiner noted that the Veteran is unable to hear. The examiner opined that it is at least as likely as not that the Veteran's hearing loss is not related to exposure to military acoustic trauma. The June 2014 VA audiology consultation shows that the Veteran reported a ten-year history of hearing loss. Upon examination, the examiner noted normal hearing at all test frequencies with excellent word recognition bilaterally. A January 2015 VA primary care note shows that the Veteran reported right ear hearing loss and stated, "I can't hear female voices as much, or low pitch [voices], or television." The February 2015 VA audiology consultation shows that the Veteran was evaluated for hearing loss. The examiner noted that the Veteran was evaluated in June 2014 and had normal hearing bilaterally. The Veteran reported that he was not able to understand female voices. The examiner noted normal bilateral hearing through 8kHz and excellent word recognition bilaterally. The August 2015 VA audiological assessment shows that the Veteran complained of difficulty hearing female voices. The examiner noted that audiological testing in June 2014 and February 2015 showed normal hearing sensitivity in both ears with excellent word recognition for words presented at soft, medium, and loud sounds. Upon examination, the examiner noted that the Veteran had normal bilateral hearing between the range of .25 and 8kHz, with excellent word recognition scores bilaterally. However, an evaluation of the Veteran's ability to hear in competing noise revealed sensorineural hearing loss indicating a mild impairment for word understanding in competing noise. The examiner noted that hearing aids were not an option for the Veteran since he has normal hearing sensitivity. During the April 2021 Board hearing, the Veteran testified that he heard the sonic boom of aircraft taking off at the end of the runway all day everyday in-service, and that there was a constant barrage of noise on the flight line. He testified that he first noticed hearing loss after service when he noticed that female voices and light voices were generally hard to hear. He also testified that he used ear plugs and earmuffs in-service, and that he was not exposed to high noise levels post-service as a schoolteacher, an operator in a chemical plant, and an electrician. During the August 2021 VA examination, the examiner opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran was able to communicate at a normal conversational level during the examination, without hearing aids, and when not looking at the speaker. Results between pure tones and all speech testing were inconsistent even after re-instruction. The examiner stated that it was clear that the Veteran's volunteered thresholds during the examination were exaggerated and stated that due to objective findings being inconsistent with organic hearing loss, the examination results are not valid for rating purposes. However, the examiner stated that when reviewing all the military records provided, there is no significant permanent shift in hearing thresholds from service entrance to separation, which is objective evidence of no permanent auditory damage in-service. The examiner also stated that there was no report of decreased hearing in-service or at service separation, until the time of the claim. The examiner noted that, although noise exposure is conceded, and the relationship between noise, auditory damage, and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone; therefore, a nexus is not established. The Board has considered the Veteran's contention that he has bilateral hearing loss that is related to his active service, to include in-service exposure to acoustic trauma. Although the March 2010 VA audiological examination shows mild sensorineural hearing loss bilaterally, and the Veteran has reported difficulty with hearing and hearing loss, the remainder of the evidence of record shows that the Veteran has had normal bilateral hearing during the period on appeal. The Veteran has asserted that his in-service exposure to acoustic trauma caused his disability, and he is found to have in-service exposure to acoustic trauma. However, he is not competent to provide an etiological opinion, and the evidence of record most consistently shows that he has had normal hearing during the period on appeal, and any reports and/or assessments of bilateral hearing loss show that the condition was not caused by his service. In conclusion, the preponderance of the evidence is against a finding that the Veteran's service, to include in-service exposure to acoustic trauma, caused his bilateral hearing loss. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, service connection is not warranted, and the claim is denied. 2. Service connection for a left leg condition, as secondary to service-connected post-operative rupture of the right achilles tendon, is denied. The Veteran's sole contention is that his left leg condition was caused by his service-connected post-operative rupture of the right achilles tendon. For the following reasons, service connection is not warranted, and the claim is denied. The Veteran's post-operative rupture of the right achilles tendon is service connected, and he has a current diagnosis of left knee strain. Therefore, the first and second elements of a claim for secondary service connection are met. The pertinent question is whether there is medical nexus evidence establishing a connection between the Veteran's left knee strain and his service-connected post-operative rupture of the right achilles tendon. During the November 2015 VA examination, the Veteran alleged that his left leg pain resulted from overcompensating for his service-connected right ankle disability. The examiner opined that the left leg disorder is less likely as not proximately due to or the result of the Veteran's right ankle disability. However, the examiner stated that the Veteran's current condition is consistent with his reported history and likely a result of his overcompensation for his right ankle/leg condition. As the opinion is internally inconsistent, it is assigned no probative value as to whether the Veteran's left leg condition is proximately due to or the result of his service-connected right ankle disability. During the April 2021 Board hearing, the Veteran testified that his left leg pain began in 2001. He testified that due to his right ankle condition, he put more pressure on his left leg. He also testified that his left shoe tread wears unevenly and faster than his right shoe. During the August 2021 VA examination, the examiner opined that the Veteran's left knee strain is less likely than not proximately due to or the result of his service-connected post-operative rupture of the right achilles tendon. The examiner stated that available service treatment records do not show diagnoses and treatment for the left knee strain because of claimed overcompensating due to the right ankle injury, and the evidence does not show a current diagnosed [left knee] disability with continuity of symptoms from service to the present. The examiner noted that the Veteran reported left leg pain that dates to 2001. However, the examiner stated there is insufficient medical evidence on which to base a specific diagnosis, or any follow-up records to support the Veteran's subjective medical history report. The preponderance of the evidence is against finding that service connection is warranted. Although the record shows that the Veteran's post-operative rupture of the right achilles tendon is service connected, and he has a current diagnosis of left knee strain, there is no probative medical evidence of record which relates his left knee strain to his service-connected post-operative rupture of the right achilles tendon. (CONTINUED ON THE NEXT PAGE) In conclusion, the probative medical evidence of record does not show that the Veteran's left knee strain is proximately due to, or the result of, his service-connected for post-operative rupture of the right achilles tendon. As such, his secondary service connection claim for a left leg condition must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, at 55. Therefore, service connection is not warranted, and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.