Citation Nr: 21009080 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 19-08 819A DATE: February 18, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a skin disorder, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a current disability of bilateral hearing loss, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss has not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to March 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2016 by a Department of Veterans Affairs (VA) Regional Office. In March 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2020, the Board remanded the appeal for additional development and it now returns for further appellate review. 1. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In this regard, 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. The Veteran contends that he currently has bilateral hearing loss related to in-service noise exposure from M-16 rifles, artillery, grenades, and mines coincident with his service in the Republic of Vietnam. However, as he does not have a diagnosis of a disability of bilateral hearing loss at any time proximate to his claim, service connection for such disorder is not warranted. In this regard, the Veteran’s post-service VA treatment records are negative for any complaints, treatment, or diagnosis referable to bilateral hearing loss and, in August 2014, he reported that his hearing was good. Furthermore, in at a November 2016 VA examination, audiometric testing at such time failed to reveal a diagnosis of bilateral hearing loss as defined by VA regulations. Specifically, pure tone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 25, 25, 20, 25, and 20, in the right ear and 20, 20, 25, 25, and 20 in the left ear, respectively. The Veteran has speech discriminations scores of 98 percent in the right ear and 96 percent in the left ear. At his March 2020 Board hearing, the Veteran testified that his hearing acuity had decreased since the November 2016 VA examination. Consequently, the Board remanded the case in May 2020 in order to afford him another VA examination so as to determine whether he had a bilateral hearing loss disability defined by VA regulations and, if so, whether such is related to his noise exposure. At an August 2020 VA examination, the Veteran’s pure tone thresholds appear to reflect bilateral hearing loss for VA purposes; however, the examiner found that such test results were not valid for rating purposes as his hearing loss appeared to be non-organic in nature. She also noted that the use of speech discrimination scores was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, ect., that make combined use of pure tone average and speech discrimination scores inappropriate. The examiner further reported that bone conduction did not match air conduction, pure tone average did not confirm speech reception thresholds, and otoacoustic emissions were normal and robust for both ears. Thus, she concluded that the Veteran’s claimed hearing loss appeared to be non-organic in nature. Therefore, based on the foregoing audiometric results, the Board finds that at no time during the pendency of the claim does the Veteran have a current disability of bilateral hearing loss, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. In this regard, the Board has also considered the Veteran’s assertions that he currently has bilateral hearing loss. As a lay person, he is certainly competent to report matters within his personal knowledge, such as his reported difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, he is not competent to diagnose hearing loss for VA purposes as he does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires the administration and interpretation of audiological testing. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, his assertions in this regard are afforded no probative weight. Therefore, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim. See Brammer, supra. Thus, service connection for bilateral hearing loss is not warranted. 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 claim, that doctrine is not applicable and service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Entitlement to service connection for a skin disorder, to include as due to exposure to herbicide agents. In light of the Veteran’s service in Vietnam, his report of the onset of his skin disorder in service and a continuity of symptomatology thereafter, and current diagnoses of eczema and tinea cruris, the Board remanded the case in May 2020 in order to obtain an opinion addressing the etiology of his claimed skin disorder. Thereafter, the Veteran underwent a VA examination in August 2020, at which time diagnoses of eczema and tinea cruris were noted, and the examiner opined that such were less likely than not related to his acknowledged in-service exposure to herbicide agents as such disorders have not been recognized by VA to be presumptively related to Agent Orange exposure. In an addendum opinion rendered later the same month, the examiner opined that such disorders were less likely than not complained about, treated, or diagnosed, while in service. In support of such determination, she noted that the Veteran’s service treatment records (STRs), to include his March 1968 separation examination, were negative for any indication of skin-related symptoms. However, the Board finds that, as the examiner based her unfavorable opinions on a lack of inclusion of eczema and tinea cruris on the list of diseases acknowledged to be presumptively related to exposure to herbicide agents, and the lack of documentation of such disorders in the Veteran’s STRs without consideration of his lay reports of skin symptoms in and since service, an addendum opinion is necessary to decide the claim. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (“to [deny] service connection... on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection.”); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (“the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”). The matter is REMANDED for the following action: Return the record, to include a copy of this Remand, to the August 2020 VA examiner who offered an opinion addressing the etiology of the Veteran’s skin disorder. If the VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. After a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed eczema and/or tinea cruris, had its onset in, or is otherwise related to, the Veteran’s military service, to include his acknowledged in-service exposure to herbicide agents. In offering such opinion, the examiner must consider and discuss the Veteran’s competent statements that his skin disorder had its onset during military service and has continued to the present time. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s STRs are silent as to any complaints, treatment, or diagnosis of a skin disorder, or a lack of medical records demonstrating a continuity of care after service. The examiner is also advised that his/her rationale cannot be based solely on the fact that VA has not included eczema and/or tinea cruris on the list of diseases acknowledged to be presumptively related to herbicide agents. In other words, the Board needs an opinion as to the likelihood that the Veteran’s eczema and/or tinea cruris is related to his in-service exposure to herbicide agents despite the fact such is not included on the presumptive list. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.