Citation Nr: 21013496 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-32 796 DATE: March 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had bilateral hearing loss meeting the criteria of 38 C.F.R. § 3.385 at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101, 1101, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. 1. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 101, 1101, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a right ankle strain are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2002 to December 2005. He also had additional service of an unverified nature and duration in the Army Reserves. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision from a Department of Veterans’ Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran’s appeal was remanded by the Board in August 2018 for further development. While in remand status, the RO granted service connection for PTSD and migraines, claimed as a TBI, in a July 2020 rating decision. The RO also granted service connection for the right shoulder disability in August 2020. As such, the Veteran’s appeal regarding those issues has been abrogated and will be discussed no further. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Service Connection Service connection is established on a direct basis when there is competent, credible, evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d).  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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993).  1. Entitlement to service connection for bilateral hearing loss The Veteran contends he has bilateral hearing loss as a result of his combat experience in Iraq as a mortarman. See notice of disagreement (received 1/23/2014). The Veteran’s military personnel records indicate the Veteran was stationed in Iraq and received a combat infantry badge. As stated above, the first element to service connection requires a current disability. Service treatment records do not reflect any in-service diagnosis or treatment for bilateral hearing loss throughout the Veteran’s active duty or Reserve service. Notably, in-service audiograms dated in September 2001, November 2003, October 2005 and July 2007 do not reflect abnormal hearing or hearing loss for VA purposes under 38 C.F.R. § 3.385. See also, Hensley v. Brown, 5 Vet. App. 155 (1993). Similarly, the Veteran was provided a VA audiological examination in October 2019 in connection with his appeal, and again, he did not demonstrated threshold losses meeting the criteria for a bilateral hearing loss diagnosis under 38 C.F.R. § 3.385. Based on these results, the examiner noted normal hearing in both the left and right ear and concluded that there is no diagnosis for hearing loss because, “there are no findings, signs, and/or symptoms to support a diagnosis.” The Veteran is competent to discuss his symptoms and issues involving his decreased ear hearing acuity; however, there is no evidence of record to suggest that the Veteran is medically trained. The Board finds that diagnosis of ear hearing loss for VA purposes is too complex to be addressed by a layperson. This diagnosis is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical testing, such as the audiograms performed in service. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Hence, the Veteran's opinion, no matter how sincere, is not competent diagnosis evidence to show chronicity in or since service. In sum, the record does not reflect evidence of a hearing loss disability in either ear during or since service. To the extent that the nature of the Veteran’s Reserve service remains unverified, the Veteran’s lack of a diagnosis of bilateral hearing loss for VA purposes at any time during his active duty, Reserve service, or the appeal period render such development a nullity regarding this appealed issue. As such, the Veteran’s appeal to establish service connection must fail under all asserted theories of entitlement. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. The Veteran’s active duty included conceded exposure to excessive noise; however, his active duty records reflect that he denied experiencing tinnitus throughout his active duty. Nonetheless, he served in the Army Reserve after his separation from active duty, and his service treatment records reflect his July 2007 report of experiencing tinnitus during his Reserve service. The Board notes that the criteria to establish service connection for disabilities incurred during periods of Active Duty for Training (ACDUTRA) and Inactive Duty Training (INACDUTRA) differ from those pertaining to active duty service. Specifically, while service connection may be established for disabilities resulting from injuries incurred on periods of ACDUTRA and INACDUTRA, service connection is warranted for diseases initially manifesting on periods of ACDUTRA only. As such, additional development is necessary to determine the exact dates of the periods of ACDUTRA and INACDUTRA served by the Veteran while in the Army Reserves after December 2005. As the above actions reflect an incomplete record for review by the prior VA examiners, the Board concludes that the AOJ must obtain an additional medical opinion addressing the date of initial onset and etiology of the Veteran’s tinnitus in view of his complete service record. Further, the Board concludes that the April 2014 VA hypertension examination is inadequate for the purpose of readjudicating the Veteran’s claim, as no etiological opinion was requested or provided. On remand, such an opinion must be obtained after the nature of the Veteran’s Reserve service is verified. 2. Entitlement to service connection for a right ankle disability is remanded. The above actions pertaining to verifying the nature of the Veteran’s Reserve service also impact this appealed issue. Also, while the prior VA examiners have stated that the Veteran’s in-service ankle strain resolved prior to the appeal period, his reports of experiencing ankle pain during the appeal period remain competent and credible. To this point, the United States Court of Appeals for the Federal Circuit recently held in Saunders v. Wilkie, 886 F.3d 1356, that 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 other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Board notes that the prior VA examiners did not comment on whether the Veteran’s ankle pain results in functional impairment of earning capacity that may qualify as a disability under Saunders. Accordingly, a remand is necessary to provide the Veteran an adequate VA examination and obtain adequate medical opinions addressing the Veteran’s assertions under the controlling laws. The matters are REMANDED for the following actions: 1. The AOJ must contact the Veteran and request that he identify any VA and/or private medical facility from which he receives treatment for the disabilities subject to this remand. Any VA treatment records identified by the Veteran must be obtained and associated with the file. The Veteran must be requested to complete releases for any outstanding private treatment records pertinent to his appeal. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 2. Thereafter, the AOJ must contact the Department of the Army, the National Personnel Records Center (NPRC) and Defense Finance and Accounting Service (DFAS), and any other appropriate office and/or repository to obtain the Veteran’s complete personnel file and pay stubs pertaining to the totality of his service in the Army Reserve. 3. Based on the evidence received downstream from the above remand directive, the AOJ must create a summary of all dates of ACDUTRA and INACDUTRA served by the Veteran while in the Army Reserve and associate such with the file. A listing of the Veteran's retirement points for his Reserve service will NOT suffice to address this remand directive. 4. Thereafter, the Veteran’s complete electronic file must be transferred to a VA audiologist. After review of the complete record, the VA audiologist is requested to address the following: a. Provide an approximate date of initial onset (month and year) of the Veteran’s tinnitus. b. Provide an opinion concerning whether the Veteran’s tinnitus is at least as likely as not proximately due to or the result of any incident of his active duty, ACDUTRA, and INACDUTRA. *In addressing the above, the examiner is on notice that the Veteran’s retrospective reports of experiencing tinnitus during and since service cannot be discounted based purely on a lack of contemporary evidence reflecting reports or claims of such. If the audiologist cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the audiologist 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 the particular question. 5. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of his claimed right ankle disability. The complete electronic record must be made available to, and reviewed by, the VA examiner(s) prior to conducting the examination(s). All necessary tests and studies should be conducted. Thereafter, the examiner is requested to address the following: a. Identify all right ankle disabilities present during the appeal period (since November 2012). *If a right ankle strain is not identified during the appeal period, the examiner is asked to discuss what type of testing could definitively identify or rule out such a diagnosis. If such testing has not been completed, the examiner is asked to do so. b. For any right ankle disability identified in part (a), provide an opinion considering whether each is at least as likely as not proximately due to or the result of any incident of the Veteran’s active duty, ACDUTRA, or INACDUTRA. c. If the Veteran's reported right ankle pain is not found to be a manifestation of any disability, please describe the functional impairment resulting from the Veteran's right ankle pain. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's right ankle pain on his ability to stand, walk, run, jump, maintain balance, and undertake plantar flexion. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. 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 the particular question. 6. Thereafter, the AOJ must readjudicate the Veteran’s appeal based on all evidence of record. If any benefit sought remains denied, the Veteran and his representative must be provided a copy of this readjudication and afforded an appropriate time to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.