Citation Nr: 21006149 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-18 795A DATE: February 3, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for a left hip condition, to include as due to service-connected disabilities, is remanded. FINDING OF FACT The probative evidence of record does not show that the Veteran’s left ear hearing loss is related to his active service, that it was diagnosed within one year of active duty service, or that the Veteran has experienced continuous symptoms of left ear hearing loss since active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 101, 1110, 1111; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S Army from September 1992 to March 1993 and from July 1994 to January 2000. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2019 when it was remanded to the Agency of Original Jurisdiction (AOJ) for VA examinations. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for left ear hearing loss As an initial matter, the Board finds that the record establishes a current left ear hearing loss disability for VA purposes in accordance with 38 C.F.R. § 3.385. Bilateral sensorineural hearing loss was demonstrated at an audiogram performed during a VA audiological examination in December 2019. The Board also finds that an in-service event is present. In that regard, the Veteran stated that he was a logistics specialist and was exposed to infantry in Korea as well as worked on the airfield with the medical unit, and on trucks with the petroleum unit. He stated that he used earplugs when required. The Veteran reported that he must lean his left ear in to hear and that he must turn the television up loud to hear it. He also reported that it was hard to hear his students at work. However, the weight of the probative evidence of record does not establish a nexus between the Veteran’s current left ear hearing loss and his active duty service. The Veteran’s service treatment records are silent as to any complaints of or treatment for hearing loss during service. The Veteran’s December 1994 examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 0 0 10 15 The Veteran’s August 1999 examination showed that his hearing was normal. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 0 5 10 15 There is no objective evidence of hearing loss until many years after service. Due to the lack of evidence demonstrating the presence of a hearing loss disability until years after service, the Board cannot conclude that it manifested to a compensable degree within a year following separation to allow for service connection on a presumptive basis in accordance with 38 C.F.R. §§ 3.307 and 3.309. Additionally, the absence of any clinical evidence for many years after service is a factor the Board considers when determining whether the evidence supports a finding that hearing loss is etiologically related to active military service. There is also no competent evidence in support of the claim. The only medical opinion of record which provides a clear and adequate etiological opinion regarding the Veteran’s bilateral hearing loss is a December 2019 VA opinion, which concluded that the Veteran’s current left ear hearing loss is not related to his in-service acoustic trauma, as the record only indicated a temporary threshold shift, as opposed to the permanent threshold shift the Veteran experienced in his service-connected right ear. The examiner explained that there was no significant hearing threshold shift during service supporting evidence of hearing loss. The December 2019 VA opinion was based upon a comprehensive review of the evidence in the claims file and provided supporting explanation and rationale for the conclusion reached. Accordingly, the Board finds the December 2019 VA opinion to be probative. The Veteran previously received a VA audiological examination in January 2015, which also concluded the Veteran’s left ear hearing loss was not related to his active duty service. Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303 (b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hearing loss a chronic disease listed in 38 C.F.R. § 3.309 (a) (as an organic disease of the nervous system) and reports of a continuity of symptoms can support the claim under 38 C.F.R. § 3.303 (b). Id. Although the Veteran provided lay statements with regard to the noise exposure that he experienced during service, he has provided no lay statements indicating that he has experienced symptoms of hearing loss continuously since active duty service. Accordingly, service connection is not warranted based upon continuity of symptomatology. The Board acknowledges the Veteran’s belief that his current left ear hearing loss is etiologically related to his in-service noise exposure; however, as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). While the Veteran is competent to report observable symptoms, his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Therefore, the Veteran’s lay statements linking his current left ear hearing loss to service do not support the claim. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, the preponderance of the evidence does not support a finding of service connection for left ear hearing loss. REASONS FOR REMAND Entitlement to service connection for a left hip condition, to include as due to service-connected disabilities is remanded. Pursuant to the September 2019 Board remand the Veteran received a VA examination in February 2020. The examiner provided a negative opinion as to whether the Veteran’s left hip condition was secondary to his service-connected bilateral knee condition. However, in the rationale provided the examiner indicated the Veteran’s back pain is a possible cause of his hip pain. The Veteran is also service connected for chronic lumbar strain with degenerative disc disease. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Accordingly, remand is required for an addendum opinion to determine if the Veteran’s left hip condition is secondary to his lumbar strain. The matters are REMANDED for the following action: Obtain an addendum opinion to determine the nature and etiology of the Veteran’s left hip condition. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that his left hip condition was incurred in, aggravated by, or etiologically related to his military service. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that his left hip condition was caused or aggravated by his service-connected disabilities to include service-connected lumbar strain with degenerative disc disease. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed 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.