Citation Nr: 21008740 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 09-42 467 DATE: February 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to nonservice-connected pension benefits for the period on appeal prior to May 25, 2019 is denied. REMANDED Entitlement to service connection for a right foot disability, to include gout and arthritis, is remanded. Entitlement to service connection for a left foot disability, to include gout and arthritis, is remanded. Entitlement to nonservice-connected pension benefits for the period on appeal from May 25, 2019 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss began during active service or is otherwise related to an in-service injury or disease. 2. Prior to May 25, 2019, the Veteran was not 65 years of age or older and was not permanently and totally disabled from nonservice-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for nonservice-connected pension have not been met for the period on appeal prior to May 25, 2019. 38 U.S.C. §§ 1513, 1521, 5107; 38 C.F.R. §§ 3.102, 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1971 to August 1973. During his period of service, he earned the National Defense Service Medal and Parachutist Badge. 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). 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, or 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. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. With respect to the first element of service connection, a current diagnosis, the Veteran underwent a VA hearing loss examination in November 2019. The examiner diagnosed bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. Thus, the current disability criterion for service connection is met for bilateral hearing loss. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. The Veteran has reported that he was exposed to acoustic trauma during service. The Veteran’s DD-214 confirms that his military occupational specialty (MOS) was light weapons infantryman. The Board finds that the Veteran is competent to report exposure to loud noise in service, and that such assertion is credible because it is consistent with the circumstances of service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As such, in-service noise exposure can be conceded, and the second element of service-connection is met for bilateral hearing loss. See Shedden, supra. The remaining question is whether there is a medical nexus between the Veteran’s in-service noise exposure and his current bilateral hearing loss. See Shedden, supra. Pursuant to the February 2019 Board remand, the Veteran appeared for a VA hearing loss examination in November 2019. The VA examiner opined that the Veteran’s right and left ear hearing loss was at least as likely as not caused by or a result of service. However, although the Veteran reported that he was an infantry officer, which had a high probability of excessive hazardous noise exposure, the examiner explained that the Veteran’s DD-214 was not available to verify the Veteran’s MOS while in the service. Moreover, the Veteran’s enlistment and separation medical examinations were not available to verify any significant changes in the Veteran’s hearing during service. Accordingly, the Board affords this opinion no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A VA opinion was obtained in May 2020. The VA examiner opined that the Veteran’s right and left ear hearing loss was less likely than not caused by or a result of service. Though she acknowledged the Veteran’s in-service noise exposure, the examiner explained that the Veteran’s enlistment audiogram showed normal hearing with slight loss in the low frequencies. His separation examination showed normal hearing at all frequencies. The examiner also noted the contention that the Veteran’s hearing loss was due to otitis media and otitis externa; however, she explained that the Veteran had a nerve hearing loss which negated a middle or outer ear component. Accordingly, due to improved thresholds and normal hearing upon separation, it was less likely than not that the Veteran’s hearing loss was incurred in or caused by service. The only other evidence that purports to link the Veteran’s current bilateral hearing loss to his military service consists of the Veteran’s lay statements. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a layperson as it involves making definitive clinical diagnoses based on knowledge of audiology. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe that he has experienced a subjective decrease in hearing acuity, he is not able to provide competent evidence as to the etiology of his audiological disabilities. Providing such an opinion requires medical expertise in the cause of hearing loss in the context of in-service noise exposure with delayed onset of symptoms. The Veteran has no such expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) (2020). The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. The Board observes that there is no evidence to support a showing that hearing loss existed or was “noted” in service. Thus, the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity of symptomatology are not for application. As such, the nexus element of Shedden may not be met via continuity of symptomatology. The Board finds that evidence in this case does not reach the level of equipoise. Although the Board is sympathetic to the Veteran’s claim, the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral hearing loss. Accordingly, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to nonservice-connected pension benefits prior to May 25, 2019 VA nonservice-connected pension benefits are payable to veterans of a period of war who meet the service requirements prescribed in 38 U.S.C. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). Basic entitlement exists if (i) the veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1502, 1521(j); 38 C.F.R. § 3.3(a). A veteran is considered permanently and totally disabled if the veteran is any of the following: (1) a patient in a nursing home for long-term care because of disability; (2) disabled as determined by the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(vi)(B). The Veteran served on active duty in the United States Army from December 1971 to August 1973, which includes service during the Vietnam Era. 38 C.F.R. § 3.2 (2020). Thus, he meets the requirement of having service during a recognized period of war. Moreover, the Veteran’s DD-214 shows his date of birth as May 25, 1954; thus, he turned 65 on May 25, 2019. Therefore, prior to May 25, 2019, the evidence must show that he was permanently and totally disabled due to his nonservice-connected disabilities. For the period from May 25, 2019, he meets the age eligibility requirement; thus, the question turns to his eligibility based upon net worth and annual income. This period will be addressed in the remand section of this decision. For the period on appeal prior to May 25, 2019, the evidence of record is negative for any indication that the Veteran was permanently and totally disabled, to include as due to nonservice-connected disabilities. There is no evidence that the Veteran received Social Security Administration disability benefits or was a patient in a nursing home. Moreover, the evidence of record does not demonstrate that the Veteran was unemployable or had a disability that would render the average person unable to follow a substantially gainful occupation. One way for a veteran to be considered permanently and totally disabled for pension purposes is to satisfy the “average person” test. See 38 U.S.C. § 1502(a); 38 C.F.R. § 4.15; Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). To meet this test, the veteran must have the permanent loss of use of both hands or feet, or one hand and one foot, or the sight of both eyes, or be permanently helpless or permanently bedridden; or the permanent disabilities must be rated, singly or in combination, as 100 percent. The Board finds that the evidence of record does not demonstrate that the Veteran meets any of those criteria. Alternatively, all veterans who are basically eligible for pension benefits and who are unable to secure and follow a substantially gainful occupation by reason of disabilities, which are likely to be permanent, shall be rated as permanently and totally disabled. For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. The percentage requirements of 38 C.F.R. § 4.16 are as follows: if there is only one disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (2020). When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure or follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran’s disabilities render him or her unemployable. See 38 C.F.R. § 4.17 (2020). Here, there is no competent and credible evidence of record which states that the Veteran is permanently and totally disabled due to a nonservice-connected disability. The Board acknowledges that the Veteran has nonservice-connected disabilities; however, they have not been shown by competent credible evidence to be permanently and totally disabling. In this case, the Veteran has been found to have the following disabilities for pension purposes : hypertension, rated as 10 percent disabling; right foot gout and arthritis, rated as 0 percent disabling; left foot gout and arthritis, rated as 0 percent disabling; partial amputation of the left index finger, rated as 0 percent disabling; right ankle injury with arthritis, rated as 0 percent disabling; left ankle injury with arthritis, rated as 0 percent disabling; hearing loss, rated as 0 percent disabling; heart problems, to include chest pain, rated as 0 percent disabling; and hepatitis C, rated as 0 percent disabling. Thus, the Veteran’s disabilities do not meet the schedular criteria for unemployability, as none of his disabilities are individually rated as 40 percent disabling or higher and his combined disability rating is only 30 percent. Instead, the evidence of record shows that the Veteran was unemployed for many years during the period on appeal prior to May 25, 2019 due to his incarceration. The Board notes the first indication of the Veteran’s release was documented in a January 2019 report of general information. However, the available evidence of record does not reflect that the Veteran was deemed to be permanently and totally disabled as due to nonservice-connected disabilities between that time and May 25, 2019. In sum, the evidence of record shows that the Veteran was not 65 years old prior to May 25, 2019 and was not permanently and totally disabled as due to nonservice-connected disabilities. Accordingly, the Board finds that the claim of entitlement to nonservice-connection pension for the period prior to May 25, 2019 must be denied. The Board need not make a determination as to whether the Veteran met the income requirements for entitlement to a pension for the period prior to May 25, 2019, as the evidence of the Veteran’s age and level of disability are dispositive. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to nonservice-connected pension, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a right foot disability 2. Entitlement to service connection for a left foot disability The Veteran appeared for a VA non-degenerative arthritis and dysbaric osteonecrosis examination in October 2019. The examiner determined that the Veteran did not have a current diagnosis associated with gout and arthritis of the right and left feet. Unfortunately, the Board finds the October 2019 VA examination to be inadequate for adjudication purposes, as the examiner failed to consider imaging results showing a history of gout. Moreover, the Veteran also appeared for a VA foot conditions examination in November 2019, at which time the examiner diagnosed hallux valgus, plantar fasciitis, and bilateral calcaneal plantar spur. However, the examiner failed to provide an opinion as to whether the currently diagnosed conditions, to hallux valgus, plantar fasciitis, and bilateral calcaneal plantar spur, are etiologically related to his active duty service. The Board acknowledges that once VA undertakes the effort to provide an examination when developing a service connection claim, an adequate examination must be provided. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, a remand is required to obtain a new examination and opinion. 3. Entitlement to nonservice-connected pension benefits from May 25, 2019 Here, the Veteran meets the initial threshold requirement for pension in that he served for over 90 days during a period of war from December 1971 to August 1973. During the pendency of this appeal, the Veteran turned 65 years old on May 25, 2019. Thus, he no longer has to prove permanent and total disability. However, the question becomes whether the Veteran meets the net worth requirements under § 3.274 and his income is not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23 for the period beginning May 25, 2019. See 38 U.S.C. § 1521(a); 38 C.F.R. § 3.3(a). Thus, a remand is warranted to obtain the Veteran’s income and expenses and to ensure they are correctly calculated for the applicable appeal period. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examination with the appropriate medical examiner to determine the nature and etiology of his right and left foot disabilities, to include gout and arthritis. The examiner must review pertinent documents in the Veteran’s claims file in conjunction with the examination. This must be noted in the examination report. All tests and studies deemed necessary by the examiner should be performed. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s claimed right and left foot disabilities had their onset in service or is otherwise etiologically related to active service. In providing this opinion, the examiner’s attention is directed to a November 2019 imaging result showing a history of gout. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Send the Veteran a letter asking that he identify income and any unreimbursed medical expenses that were paid that may offset the amount of his countable income for pension calculation purposes for the period on appeal from May 25, 2019. The Veteran must be notified of the exclusions from income that are listed in 38 C.F.R. § 3.272. The letter should be enclosed with Improved Pension Eligibility Verification Reports, Medical Expense Reports, and any other forms required for a full and accurate reporting of the Veteran’s income and expenses for the period in question. 3. Thereafter, the RO should review the expanded record and determine whether the benefits sought may be granted for the period on appeal from May 25, 2019 utilizing the applicable criteria. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, 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.