Citation Nr: 21006470 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-51 945 DATE: February 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for left leg sciatica is denied. Entitlement to service connection for allergic rhinitis is denied. FINDINGS OF FACT 1. The preponderance of evidence is against a finding that the Veteran has bilateral hearing loss as defined by VA regulation during or contemporary to the appeal period. 2. The preponderance of evidence is against a finding that the Veteran has a left leg sciatica disability during or contemporary to the appeal period. 3. The preponderance of evidence is against a finding that the Veteran has an allergic rhinitis diagnosis during or contemporary to the appeal period and to the extent that any allergic rhinitis has been diagnosed, the preponderance of the evidence is against a finding that it is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § §§ 1101, 1110; 38 C.F.R. § §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for left leg sciatica have not been met. 38 U.S.C. § §§ 1101, 1110; 38 C.F.R. § §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for allergic rhinitis have not been met. 38 U.S.C. § §§ 1101, 1110; 38 C.F.R. § §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1999 to November 2014. This matter comes to the Board of Veterans’ Appeals (Board) on appeal a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In June 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In December 2019, the Board remanded the claims to the Agency of Original Jurisdiction for additional action. An April 2020 rating decision established service connection for right leg sciatica and assigned a 10 percent rating, effective January 22, 2020. Therefore, the claim for service connection for right leg sciatica, previously the subject of the appeal, has been resolved in the Veteran’s favor, and there is no longer a case in controversy for Appellate consideration as to that claim.  Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (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) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §§ 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis will focus on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he is entitled to service connection for bilateral hearing loss. The Board finds that the evidence of record does not show that the Veteran has a current diagnosis of hearing loss for Board purposes or evidence of a functional limitation constituting a disability. Therefore, as the preponderance of evidence is against a finding that the Veteran has a current chronic bilateral hearing loss diagnosis or has had the claimed disability contemporary to the claims period, the claim for service connection must be denied. Organic diseases of the nervous system are among the chronic diseases listed in 38 C.F.R. § 3.309(a), and service connection for organic diseases of the nervous system may be established based on a continuity of symptomatology. Furthermore, service incurrence will be presumed for certain chronic diseases, including organic diseases of the nervous system, if manifest to a compensable degree within one year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold consideration for any service connection claim is the existence of a current disability. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board finds that the preponderance of the evidence of record is against a finding that the Veteran has bilateral hearing loss disability as defined by VA regulation. At the Veteran’s April 1999 enlistment examination, pure tone thresholds, in decibels, were: April 1999 HERTZ 500 1000 2000 3000 4000 Avg RIGHT 5 0 0 0 0 0 LEFT 0 0 0 0 0 0 The Veteran’s March 2014 separation hearing loss examination found that the Veteran reported working around jets with the use of hearing protection for 15 years. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were: March 2014 HERTZ 500 1000 2000 3000 4000 Avg CNC RIGHT 35 30 10 10 10 15 96 LEFT 20 10 5 20 20 14 96 After service, at a January 2020 VA examination, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were: January 2020 HERTZ 500 1000 2000 3000 4000 Avg CNC RIGHT 10 20 25 10 5 15 96 LEFT 5 10 10 10 15 11 96 The January 2020 VA examiner opined that the Veteran’s hearing was within normal limits for both ears. Therefore, it is less likely as not that the claimed hearing loss was due to service noise exposure or acoustic trauma. The Board appreciates that the Veteran contends that he has bilateral hearing loss. However, the Board notes that none of the evidence of record shows pure tone thresholds or speech recognition scores that meet the numerical standards enumerated by 38 C.F.R. § 3.385 for any diminished hearing to be considered a hearing loss disability for VA compensation purposes in either ear. Therefore, the Veteran does not have a hearing loss disability for VA benefits purposes. Without a diagnosis of a current hearing loss disability that meets the standards of 38 C.F.R. § 3.385, service connection cannot be established for a bilateral hearing loss disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The level of right ear and left ear hearing loss shown by the Veteran does not constitute a disability for VA purposes. 38 C.F.R. § 3.385. The Veteran is competent to report difficulty hearing. However, he is not competent to state that the pure tone thresholds or speech recognition scores rise to levels sufficient to constitute a disability for VA purposes as defined by regulation. That take diagnostic testing. Accordingly, the Board has placed greater probative value on the contemporaneous medical evidence that does not support a finding of a hearing loss disability for VA purposes during or contemporary to the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current hearing loss disability for VA purposes in either ear. Therefore, the claim for service connection for bilateral hearing loss disability is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for left leg sciatica. The Veteran contends that he is entitled to service connection for left leg sciatica. Specifically, the Veteran contends that left leg sciatica began in service and continues to the present. The Board finds that the evidence of record does not show that the Veteran has a current diagnosis of left leg sciatica. Therefore, as the preponderance of evidence is against a finding that the Veteran has a current, chronic left leg sciatica diagnosis, or any other left leg neuropathic disability, or has had the claimed disability during or contemporary to the claims period, the claim for service connection must be denied. Here, the evidence of record shows no evidence of a current, chronic left leg sciatic diagnosis or any other chronic left leg neuropathic disability. A July 2013 progress note notes the Veteran as having 5/5 bilateral lower extremity strength and a normal sensory examination. The Veteran’s April 2014 separation examination noted normal neurological examination and no radiculopathy or neurologic abnormalities stemming from any back or neck condition. July, August, and September 2014 neck and back pain management evaluations noted normal neurologic examinations. A December 2014 pain clinic evaluation found normal gross motor and sensory examination of the lower extremities An analysis of post-service medical records shows no diagnosed left leg sciatica, to include on VA examination. The Veteran has not submitted any competent evidence that demonstrates a current diagnosis of chronic left leg sciatica or any other potential chronic left lower extremity neurologic conditions during the claim period. No post-service treatment record documents a left leg sciatic diagnosis in the patient’s history. During a VA examination in January 2020, the examiner did not diagnose a left lower extremity condition. The examiner stated that review of the claims file showed degenerative changes of the lumbar spine in 2010, by MRI. However, the Veteran was complaining of left lower leg radiculopathy, which had resolved. The Board notes that, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Bruce v. West, 11 Vet. App. 405 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased rating); Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges that the Veteran has claimed that he has a disability that first occurred in-service and continues to the present. However, the Board finds that the Veteran, as a lay person, is not competent to provide a diagnosis for a complex disability dealing with neurologic issues, and thus is not competent to diagnose a chronic neurologic disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent evidence concerning the nature and etiology of the Veteran’s claimed neurologic disability has been provided by a medical professional who has examined the Veteran, and the underlying medical history of his condition, and found no current clinically diagnosed recurrent chronic left leg neurologic disability. To the extent that there is a conflict between the lay and medical evidence, the Board finds the observations of a skilled professional to be more probative than any lay assertions in this case. Accordingly, the VA medical examiner opinions are found to carry significant weight and to be the most persuasive evidence of record. In the absence of competent medical evidence providing a current, recurrent chronic left leg sciatic diagnosis or any other chronic, recurrent left leg neurologic disability, or showing any current residual disability due to the claimed in-service diagnosis, the threshold requirement for substantiating the claims for service connection is not met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board is appreciative of the Veteran’s faithful and honorable service to our country. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the Board finds that the preponderance of the evidence is against a finding of any current diagnosis for recurrent, chronic left leg sciatica or any other chronic, recurrent left leg neurologic disability related to active service. Therefore, the claim of service connection for left leg sciatica must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for allergic rhinitis is denied. The Veteran contends that he is entitled to service connection for allergic rhinitis. Specifically, the Veteran contends that allergic rhinitis began in service and continues to the present. The Board finds that the evidence of record does not show that the Veteran has a current diagnosis of allergic rhinitis. Therefore, as the preponderance of evidence is against a finding that the Veteran has a current, chronic allergic rhinitis diagnosis, or any other related disability, or has had the claimed disability during or contemporary to the claims period, the claim for service connection must be denied. To the extent that allergic rhinitis may have been diagnosed, the preponderance of the evidence is against a finding that any current allergic rhinitis was incurred in service or is due to any event, injury, or disease during service. The Board notes that in a December 2019 remand, the Board found an April 2014 sinus examination that diagnosed allergic rhinitis based on the Veteran’s subjective history was incomplete because the examiner did not provide an etiology opinion. At that examination, the Veteran reported that the condition began two years prior. The Veteran reported dry eyes, watery eyes, and coughing a lot, but was unsure if the condition had been formally diagnosed. The service medical records do not contain complaints of, treatment for, or any diagnosis of allergic rhinitis. Examination findings from January 2014 noted the Veteran as having a normal head, ear, eye, neck, and throat (HEENT) examination. During VA examination in January 2020, the examiner, a Family Nurse Practitioner, stated that the Veteran did not now have or ever have a diagnosed sinus, nose, throat, larynx, or pharynx condition. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran’s symptoms were subjective only and the objective examination was normal. The examiner stated that there was no objective evidence of a chronic allergic rhinitis condition. Review of the claims file did not show objective evidence of allergic rhinitis during service. Review of the claims file did not show objective evidence of a chronic allergic rhinitis condition. Review of claims file shows VA examination in 2014 reported a history allergic rhinitis. There is no evidence of chronicity and continuity of care. A nexus was not established. The Board notes that, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Bruce v. West, 11 Vet. App. 405 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased rating); Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges that the Veteran has claimed that he has a disability that first occurred in-service and continues to the present. However, the Board finds that the Veteran, as a lay person, is not competent to provide a diagnosis for a complex disability dealing with HEENT issues, and thus is not competent to diagnose a chronic sinus disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent evidence concerning the nature and etiology of the Veteran’s claimed sinus disability has been provided by a medical professional who has examined the Veteran, and the underlying medical history of his condition, and found no current clinically diagnosed recurrent chronic allergic rhinitis or HEENT disability. To the extent that there is a conflict between the lay and medical evidence, the Board finds the observations of a skilled professional to be more probative than any lay assertions in this case. Accordingly, the VA medical examiner opinions are found to carry significant weight and to be the most persuasive evidence of record. The Board finds that the preponderance of the evidence is against a finding that the Veteran has a current chronic allergic rhinitis diagnosis or any other chronic, recurrent HEENT disability, the threshold requirement for substantiating the claims for service connection is not met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). To the extent that the Veteran may have claimed allergic rhinitis, the January 2020 VA examiner found that it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The Board finds that opinion plausible considering the fact pattern presented. The examiner noted that the evidence of record did not show any continuity of care and there were only subjective symptoms with no objective evidence of allergic rhinitis. The Board is appreciative of the Veteran’s faithful and honorable service to our country. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the Board finds that the preponderance of the evidence is against a finding of any current diagnosis for allergic rhinitis or any other chronic, recurrent sinus related disability related to active service. Therefore, the claim of service connection for allergic rhinitis must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.