Citation Nr: 21008336 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 15-31 117A DATE: February 16, 2021 ORDER Entitlement ot service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a low back disorder, to include spondylolisthesis is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a bilateral hearing loss disorder began during active service or is otherwise related to an in-service injury or disease. There is no indication that bilateral sensorineural hearing loss manifested to a compensable degree during the one-year period following the Veteran’s discharge from service. CONCLUSIONS OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty service from March 1964 to July 1965. He testified before the undersigned in a January 2019 hearing. A transcript is of record. By way of recent history, in May 2019, the Board of Veterans’ Appeals (Board) decide the issues addressed in this decision. The Veteran appealed. In April 2020, the United States Court of Appeals for Veterans Claims (the Court) granted a joint motion for remand (JMFR), vacating the Boards May 2019 decision and remanded the following issues, service connection for a low back disorder, to include spondylolisthesis and service connection for bilateral hearing loss in accordance with the terms of the JMFR. The Court determined that the Board did not address whether it had jurisdiction to review the Veteran’s claims prior to the AOJ conducting a higher-level review of the claims, or whether it had jurisdiction to review the claims under the legacy appeal system. The Court also determined that the Board did not provide an adequate reasons and basis in determining that the Veteran’s lower back disorder pre-existed service and was not aggravated by his time in-service. Prior to the Boards May 2019 decision, the Veteran submitted a February 9, 2018 RAMP opt-in form for the issues above which had not been addressed by the VA or the Board at the time of its May 2019 decision. After the Court remanded the Veteran’s claims back to the Board. In November 2020 a post-implementation RAMP choice letter was mailed to the Veteran and his representative by the Board. They were provided 60 days to opt into the Ramp provisions, after which it was held that the case would remain in the Legacy system. At the time of this decision, the Board has not received a response to the RAMP letter from the Veteran or his representative, thus the Board will adjudicate the Veteran’s claims as a legacy appeal. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2020). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information 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. 38U.S.C. §5107 (2012); 38C.F.R. §3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). Sensorineural hearing loss is on the list of diseases presumed to have been incurred in-service and receives a one-year presumption. 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, or 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 (2020). Entitlement ot service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is related to his time in-service. The Board respectfully disagrees. STRs are negative for any complaints, diagnoses, or treatments for hearing loss in-service. In a June 1965 medical board examination, the Veteran’s audiometer testing was normal. On examination he reported negative for ear trouble, hearing loss, ear drum perforation or scarring, and running ears at discharge. VA outpatient treatment records reveal that the Veteran was treated for hearing loss and prescribed hearing aids. During the examinations the Veteran reported that his hearing loss was related to his time in-service. In a September 2010 VA hearing loss examination, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 CNC RIGHT 10 10 15 30 70 100 LEFT 10 15 15 45 75 88 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 88 in the left ear. On examination, the Veteran reported noise exposure to gunfire and aircraft in-service. He also reported that he was employed in sales after leaving service and denied any occupations which might have exposed him to loud noise exposure after discharge. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The examiner opined that the Veteran’s hearing loss is less likely as not caused by or a result of military service noise exposure. The examiner explained that the claims file does not reveal that the Veteran had any exposure to combat. The examiner explained that the Veteran’s hearing tested normal at all frequencies during his in-service March 1964 and June 1965 examinations. The exception was mild hearing loss at 6000 HZ in the left ear in the June 1965 examination. The examiner noted that the mild hearing loss at 6000 HZ is questionable due to the Veteran’s exceptional hearing at other frequencies. The examiner explained that a possible inaccurate response due to a test or examiner error as a possible reason for the questionable result. Furthermore, at the time of the 6000 HZ reading, that finding appears to have been crossed out on the audiogram card. In a January 2019 hearing before the undersigned, the Veteran reported that he experienced loud noise exposure while working as a security guard on the flight line in-service. The Veteran asserted that the loud noises of the aircraft engine thrust resulted in the onset of his bilateral hearing loss. The foregoing summary of the treatment record reveals no possibility for service connection for bilateral hearing loss. Although the Veteran contends that he suffered loud noise exposure in -service, his STRs do not report any complaints, diagnosis, or treatment for hearing loss. Moreover, in the Veteran’s September 2010 VA audiological examination, the examiner did not find a nexus between the Veteran’s hearing loss and his time in-service. Significantly, there is no opinion to the contrary. The Board also reviewed the Veteran’s lay statements and hearing testimony asserting that his bilateral hearing loss is connected to his loud noise exposure in-service. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to bilateral hearing loss as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2020). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran has reported that his bilateral hearing loss has been present since service, this is not found to be probative considering the other evidence of the record. It has been determined by the Board, that the onset of the Veteran’s hearing loss occurred many years after discharge from service. Although the Veteran asserts that he experienced noise exposure in-service, his STRs do not report any complaints, diagnosis, or treatments for hearing loss at an examination prior to discharge. Furthermore, there is no indication that the Veteran was exposed to combat in-service. Lastly, as a pathology of bilateral sensorineural hearing loss was not shown until many years after separation, the Board finds no evidence to support the Veteran’s contentions. Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3 (2020). REASONS FOR REMAND Entitlement to service connection for a low back disorder, to include spondylolisthesis. As noted above, in an April 2020 JMFR the Court remanded the claim finding that the Board did not provide sufficient analysis to support its conclusion that the Veteran’s low back disorder, to include spondylolisthesis pre-existed or was aggravated by his time in-service. The Board relied on an May 2010 VA examination report; however, in the report, the examiner did not thoroughly address the Veteran’s pre-existing low back disorder and did not provide a detailed rationale explaining why the Veteran’s low back disorder, to include spondylolisthesis was not aggravated by his time in-service. Moreover, the examiner did not address the Veteran’s reporting in a January 2019 hearing that his pre-existing low back disorder, to include spondylolisthesis was aggravated in-service by his long hours of walking or standing during guard duty. As such, a new examiner opinion is necessary to address the Veteran’s contentions and provide a thorough rationale. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The matters are REMANDED for the following action: 1. Return the Veteran’s claims file to the examiner who conducted the May 2010 VA examination for a back disorder so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. After a thorough review of the medical history the examiner is requested to prepare a detailed opinion which answers the following: Taking into consideration the Veteran’s lay statements and post service VA and private treatment records, (1) is there clear and unmistakable evidence of a back disorder pre-existing entrance into service; if so (2) is there clear and unmistakable evidence that the back disorder was not aggravated by service; if no (3) is it as likely as not (that is a probability of 50 percent or greater) that the Veteran’s low back disorder, to include spondylolisthesis is related to, or aggravated by an in-service occurrence or event? The examiner should discuss the Veteran’s October 1964 in-service diagnosis of spondylolisthesis and the possibility that the onset is related to the Veteran’s reporting of aggravation in-service due to his long hours of walking or standing during guard duty. The examiner should also discuss whether the Veteran’s spondylolisthesis pre-existed service. If any identifiable evidence of a low back disorder to include spondylolisthesis is not found or determined to be related to or aggravated by an in-service injury or event, that should be specifically set out with the factors considered in making that determination. Please provide a complete rationale for all opinions entered and review the entire record including lay statements. If an examiner cannot provide any of the requested opinions, he/she must affirm that all procurable and assembled data was fully considered, and a detailed rationale must be provided for why an opinion cannot be rendered. The AOJ must ensure that the examiner’s report complies with this remand and answers the questions presented in the request. The AOJ must also ensure that the examiner documents consideration of the electronic claims file. If the report is insufficient, the AOJ should take corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.