Citation Nr: 21011091 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-22 239 DATE: February 26, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED The issue of entitlement to service connection for a right knee condition, to include as secondary to a right leg injury from mortar round, is remanded. The issue of entitlement to service connection for heart disease is remanded. VETERAN’S CONTENTIONS The Veteran contends that he developed bilateral hearing loss as a result of acoustic trauma he sustained in service related to his MOS as infantryman. Specifically, he contends that he was exposed to weapons, including machine guns and mortar rounds, without hearing protection. FINDING OF FACT Bilateral hearing loss was not shown in service or for many years thereafter and is not related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to January 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Winston-Salem, North Carolina. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2020. A transcript of the hearing is of record. These matters were previously before the Board in August 2020 at which time they were remanded for further development. Entitlement to service connection for bilateral hearing loss Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). "Other organic diseases of the nervous system," which may include sensorineural hearing loss, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1336-38. The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Notably however, "section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley v. Brown, 5 Vet. App. 155, 159 (1993). "When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Id. at 160. In addressing the criterion of a current diagnosis, the record reflects that the Veteran has been diagnosed with bilateral hearing loss that meets VA criteria for consideration as a disability. See January 2016 VA Hearing Loss and Tinnitus Examination Report and December 2020 VA Hearing Loss and Tinnitus Examination Report; 38 C.F.R. § 3.385. As such, the first element of service connection, a current disability, is satisfied. Turning next to service incurrence, the Board finds that the Veteran was exposed to excessive levels of noise in service, based on his consistent statements regarding in-service noise exposure related to his military occupational specialty (MOS). In this regard, the Board notes that the Veteran's military personnel records, including his DD-214, confirm his MOS as infantryman which has a high probability of noise exposure. The Veteran’s military personnel records also confirm that he received a sharpshooter (rifle M-14) and combat infantryman badge. Additionally, the RO has conceded noise exposure. See March 2017 Statement of the Case. In addressing nexus, a January 2016 VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or a result of an event in military service. The examiner reasoned that the Veteran's hearing thresholds were within normal limits at enlistment and separation without significant shift or decrease during service tenure; the examiner explained that if hearing thresholds are normal or there is no evidence of permanent threshold changes during military service, there is no direct evidence of a link between the current hearing loss and in-service events. The examiner also noted that recreationally, the Veteran went hunting/shooting for several years in the 1970’s and 1980’s without hearing protection and used lawn equipment and snow blowers without hearing protection regularly, suggesting that this post-service noise exposure lessened the likelihood of a relationship between his current hearing loss and any in-service noise exposure. In August 2020 the Board remanded the Veteran’s claim to obtain an addendum opinion addressing the Veteran’s lay contentions regarding experiencing hearing problems during service and the theory of delayed onset hearing loss. In this regard, a December 2020 VA examiner acknowledged the Veteran’s lay statements regarding the delayed onset of his hearing loss, however, the examiner again opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or a result of an event in military service. The examiner reasoned that there was no evidence that the Veteran’s hearing loss had its onset in service or within one year of service. The examiner explained that although normal hearing at separation does not preclude service connection for hearing loss, evidence of no permanent auditory damage from conceded noise in service does preclude service connection. The examiner acknowledged that hazardous noise exposure had been conceded, but explained that acoustic trauma/auditory damage from that noise may not be conceded based on noise exposure alone. Rather, there must be evidence of auditory damage in service to relate current hearing loss to military noise. Here, there was no significant permanent shift in hearing thresholds from pre-induction to separation, which amounted to objective evidence of no permanent auditory damage in service from conceded noise. As such, it was less likely than not that the Veteran’s current hearing loss was related to noise exposure in service. The Board finds the January 2016 and December 2020 VA examiner opinions to be highly probative, as they were based on a review of the claims file and relevant facts, and the examiners provided detailed rationales. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Veteran's complaints related to his bilateral hearing loss, including difficulty hearing and understanding conversations, especially in noisy places, and difficulty distinguishing who is talking; and recognizes that the Veteran is competent to describe symptoms he experienced based on his personal knowledge. Layno, 6 Vet. App. at 470. However, the issue of whether the Veteran has current bilateral hearing loss sustained in service for which service connection may be granted is a complex medical issue which the Veteran is not competent to address. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the Veteran's bilateral hearing loss was not shown in service, or for many years thereafter, and is not related to service. Therefore, service connection for bilateral hearing loss is denied. In reaching the above 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 in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND 1. Entitlement to service connection for a right knee condition, to include as secondary to a right leg injury from mortar round, is remanded. The Veteran contends that he has a right knee condition secondary to his service-connected right leg injury from mortar round. In this regard, a March 2016 VA examiner opined that the Veteran did not have a knee condition; the knee examination was normal with no pathology; and a December 2020 VA examiner opined that the Veteran did not have a diagnosed right knee condition. The Board finds the March 2016 and December 2020 VA examiner rationales inadequate to decide the Veteran's claim for service connection for a right knee condition. In Saunders v. Wilkie the Court held that pain resulting in function impairment constitutes a disability as contemplated in 38 U.S.C. § 1110, even in the absence of a presently diagnosed condition. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). During the June 2020 Board hearing, the Veteran testified that he experiences swelling after excessive use that results in an inability to walk. The Veteran further testified that he would be unable to work in a position that required a lot of walking. The August 2020 Board remand directives specifically requested that the examiner determine whether the Veteran’s right knee pain causes functional impairment and whether a relationship exists between service/service-connected right leg injury from mortar round and any functional impairment, given the Veteran’s testimony. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A remand by the Board also confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that an addendum opinion is required so that a VA examiner can render a retrospective opinion in accordance with Saunders. 2. Entitlement to service connection for heart disease is remanded. The Veteran contends that he has heart disease as a result of exposure to herbicides including Agent Orange. In this regard, a January 2016 VA examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner reasoned that aortic stenosis is due to a congenital abnormality of the aortic valve; rheumatic fever that can cause scarring of the valve of calcium deposits. Therefore, the aortic valve disorder is not due to atherosclerosis. A December 2020 VA examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the current heart condition was due to a congenital structural abnormality. There was no medical evidence that the condition occurred in or was caused by service during service. The Board finds the January 2016 and December 2020 VA examiner rationales inadequate to decide the Veteran's claim for service connection for heart disease. Service connection may be granted for congenital diseases which either first manifest during service or which preexist service and progress at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43253 (1990); VAOPGCPREC 82-90; see also 38 C.F.R. §§ 3.303 (c), 3.306. Service connection for a congenital defect can only be established if the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. VAOPGCPREC 82-90 (July 18, 1990). Here, the VA examiners opined that the Veteran's heart disease was a congenital abnormality, but clarification is needed as to whether the Veteran's heart disease is "more or less stationary in nature" (a defect) or "capable of improving or deteriorating" (a disease). See VAOPGCPREC 82-90; Quirin, supra. Additionally, an opinion is needed as to whether the Veteran's heart disease first manifested during service or preexisted service and progressed at an abnormally high rate during service (if it is a congenital disease) and/or whether it was aggravated by a superimposed injury during military service (if it is a congenital defect). Therefore, an addendum opinion should be obtained on remand. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Send the file to a different VA examiner than the December 2020 VA examiner for an addendum opinion regarding the Veteran's claim for service connection for a right knee condition. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims file and a copy of the remand, must be reviewed by the examiner to address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has a right knee condition or right knee pain that causes functional impairment that had its onset in service, or within one year of his separation from service, or is otherwise related to service. The examiner is asked to specifically discuss whether there are any neurological problems associated with the mortar round injury; any diagnoses separate and distinct from the otherwise compensated residuals of the service-connected right leg injury from mortar round. The examiner is also asked to specifically discuss the Veteran's report that swelling after excessive use results in an inability to walk and inability to work in a position that required a lot of walking, and offer an opinion as to whether it is at least as likely as not that the swelling is related to service, including a service-connected disability. (b.) For any right knee functional impairment or disability found, please offer an opinion as to whether it is at least as likely as not that such impairment or disability was 1) caused or 2) aggravated (permanently worsened beyond the normal progression of that condition) by his service-connected right leg injury from mortar round. (c.) If the examiner finds that the right knee functional impairment or disability has been aggravated by the Veteran's service-connected right leg injury from mortar round the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to the disability. (d.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Send the file to a different VA examiner than the December 2020 VA examiner for an addendum opinion regarding the Veteran's claim for service connection for heart disease. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims file and a copy of the remand, must be reviewed by the examiner to address the following: (a.) Is the Veteran's heart disease considered a congenital defect? For purposes of answering this question, the examiner is asked to consider a congenital defect to be a condition that is static in nature, such that it is incapable of improvement or deterioration. Alternatively, is the Veteran's heart disease considered a congenital disease? In answering this question, the examiner is asked to consider a congenital disease to be a condition that is progressive in nature, such that it can worsen over time. (b.) If it is determined that the heart disease is a congenital defect, was there additional disability superimposed upon that congenital defect during the Veteran's service or lifetime? If so, is it at least as likely as not that the superimposed disability was related to any event or injury during the Veteran's service? Please explain why or why not. (c.) If it is determined that the heart disease is a congenital disease, is it at least as likely as not that the condition is related to service? Did it first manifest in service? If it pre-existed service, did it progress at an abnormally high rate due to service? (d.) The examiner is asked to discuss the Veteran's presumed herbicide exposure, including Agent Orange, and whether any currently diagnosed heart condition may be considered to be related to such exposure. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.