Citation Nr: 21005935 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-47 880 DATE: February 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for a bilateral hip condition is remanded. Entitlement service connection for a bilateral shoulder condition is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has had sufficient hearing loss in either ear to qualify as a disability for VA compensation purposes during the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385, 4.85(a) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1973 to March 1975. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office. In November 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matters are before the Board. The Veteran is seeking service connection for bilateral hearing loss, and contends that his exposure to significant military noise caused his current hearing loss. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. 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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” 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(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. The Board notes that the Veteran underwent a VA audiological examination in January 2015. The audiometric testing in the Veteran’s right ear disclosed hearing threshold levels in decibels of 20, 20, 20, 30, and 35, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz. The audiometric testing in the left ear disclosed hearing threshold levels in decibels of 20, 20, 15, 25, and 30, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz. The Veteran’s Maryland CNC speech recognition scores were 94 percent for the both ears. Thus, the findings from the January 2015 VA audiology examination does not satisfy the criteria for a bilateral hearing loss disability under 38 C.F.R. § 3.385. The Board acknowledges that the Veteran submitted a private audiological evaluation in February 2016. However, the Board cannot use the private evaluation to determine whether the severity of the Veteran’s current hearing loss qualifies as a disability for VA purposes, since it does not include Maryland CNC speech discrimination test scores. See 38 C.F.R. § 4.85(a) (2019). Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran has had sufficient hearing loss in either ear to qualify as a disability for VA compensation purposes during the pendency of this claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the Veteran’s entitlement to service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385, 4.85(a) (2019). REASONS FOR REMAND Further, the Veteran is seeking service connections for a bilateral knee condition, a bilateral hip condition, and a bilateral shoulder condition. However, the Board finds that more development is necessary prior to final adjudication. The record shows the Veteran’s current osteoarthritis conditions for the knees, hips, and shoulders. During the November 2020 hearing, the Veteran competently testified that the Veteran had sustained injuries to his knees, hips, and shoulders in service after being thrown off to the ground three times due to blow-ups of a defective tire rim while he was working on pumping air into the tire. See November 2020 Hearing Transcript, at 5-7. The Veteran’s private medical provider opined in October 2016 that the Veteran’s current knees, hips, and shoulders conditions are more likely associated with the Veteran’s claimed in-service injury without providing any explanation or rationale. Based on above, the Board finds that the Veteran should be afforded VA examinations for knees, hips, and shoulders conditions to determine the nature and etiology of the conditions in order to make fully informed decisions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction should schedule the Veteran for examinations by an appropriate medical examiner to determine the nature and etiology of the Veteran’s current bilateral knee, bilateral hips, and bilateral shoulder condition. The examiner must review the Veteran’s claims file and a copy of this REMAND order in conjunction with the examination. (a.) The examiner must opine whether the Veteran’s current bilateral knee condition is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (b.) The examiner must opine whether the Veteran’s current bilateral hip condition is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (c.) The examiner must opine whether the Veteran’s current bilateral shoulder condition is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (d.) The examiner is specifically asked to consider the Veteran’s July 2020 testimony regarding his in-service injury. See July 2020 Hearing Transcript, at 5-7; see also September 2016 Correspondence. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (e.) The examiner is also asked to address the October 2016 opinion by a private nurse practitioner K.W. If the examiner disagrees with the October 2016 opinion, the examiner must provide reasons for the disagreement. (f.) The examiner must provide a complete written rationale for any opinion rendered. 2. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.