Citation Nr: 21020990 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-25 620 DATE: April 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that a current bilateral hearing loss disability was incurred in or caused by service. CONCLUSION OF LAW The criteria for entitlement for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to October 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 and an April 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. This matter was last before the Board in October 2020, when it was remanded for further development. SERVICE CONNECTION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for bilateral hearing loss For the purposes of applying the law 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 (specified frequencies) 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. “[W]hen 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.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran contends that his bilateral hearing loss is a result of his military service, to include his conceded exposure to acoustic trauma. A current bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 is shown on the July 2016 VA examination. The question that remains is whether the Veteran’s bilateral hearing loss disability is related to service. Service treatment records (STRs) show the Veteran had an audiological evaluation in April 1977 and October 1981 in conjunction with his entrance and separation examinations. On both tests, auditory thresholds reflected hearing within normal limits per VA purposes. The first indication that the Veteran met the criteria for a hearing loss disability pursuant to 38 C.F.R. § 3.385 was during audiological testing conducted in April 2014. Since there is no competent evidence that the Veteran met the criteria for a bilateral hearing loss disability in service or within one year following his discharge from service, competent evidence linking the current condition with service is required to establish service connection. No such evidence exists in this case. In this regard, an October 2020 a VA examiner opined that it is less likely than not that the Veteran’s current bilateral hearing loss is due to his in-service noise exposure. The examiner noted the Veteran's military occupational specialty of tactical wire operations specialist has a moderate probability of noise exposure and that he also received a rifle M-16 marksman badge. The examiner also noted the Veteran's first test in April 1977 prior to his active duty period showed normal to a mild high frequency hearing loss in both ears. All remaining tests including his last test in October 1981 just prior to separation revealed normal hearing in both ears with the same or better thresholds than at enlistment. There were no significant threshold shifts while in service. The examiner indicated that the Veteran’s service treatment records were silent for hearing loss complaint. The examiner explained that research studies have shown that there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. Although definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. Additionally, the examiner noted that the Veteran also reported post service noise exposure during his examination on April 2014, including forklift operator, assembly line worker, and die casing operator with hearing protection. He also reported a family history of hearing loss of his two brothers on his January 2016 audiological evaluation. The examiner found that based on the objective audiograms while active duty, there is no evidence on which to conclude that the Veteran’s current hearing loss was caused by or a result of his military service, including noise exposure. To the extent that the Veteran believes that his current bilateral hearing loss is related to service, as a lay person he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hearing loss are matters requiring medical testing and expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of his hearing loss is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the lay assertions. There is no medical opinion to the contrary. In sum, the most probative evidence of record is against a finding that the Veteran’s bilateral hearing loss arose in service or for decades thereafter, or that it is otherwise related to service. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded right knee is remanded. The Veteran initially underwent a VA knee examination in August 2013, at which time the examiner diagnosed the Veteran with bilateral knee strains and opined that they were less likely than not related to service. In May 2018, the Board remanded the claims for a new VA examination because the August 2013 VA examiner did not perform imaging studies or otherwise address the Veteran’s arthritis of the knees, which was diagnosed during the course of his claim. The Board directed the examiner to provide another opinion as to whether any left or right knee disability diagnosed during the course of the Veteran’s claim was related to service. The Veteran underwent another VA examination in July 2018, at which time the examiner again diagnosed the Veteran with bilateral knee strains and opined that they were less likely than not incurred in or caused by service. The July 2018 VA examiner indicated that imaging studies were not performed and again failed to acknowledge the Veteran’s diagnosis of arthritis of the knees. In July 2019, the RO requested another medical opinion as to whether the Veteran’s diagnosed arthritis of the knees was incurred in or caused by service. In August 2019, another VA examiner reviewed the evidence of record and indicated that the Veteran does have arthritis of the knees. However, the examiner did not provide an opinion as to whether the Veteran’s arthritis was incurred in or caused by service. The Board remanded the claims in October 2020 and directed the examiner to address whether the knee disability was incurred in or caused by service to include as due to a January 1979 jeep accident and/or normal wear and tear during military service. In accordance with the prior remand directives, an addendum opinion was obtained in October 2020. Nevertheless, that opinion is not fully responsive to the remand directives. Specifically, the examiner did not address the Veteran’s contentions regarding the January 1979 jeep accident and/or normal wear and tear during military service. The Board regrets the additional delay but finds that a remand is warranted for substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Provide the claims file to an appropriate VA examiner to obtain an opinion with respect to the Veteran’s service connection claim for a bilateral knee disability. Do not schedule the Veteran for another VA examination unless it is deemed necessary by the examiner to respond to the questions presented. After a review of the claims file, the examiner should answer the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current right knee arthritis and/or strain was incurred in or caused by service, to include as due to a January 1979 jeep accident and/or normal wear and tear during military service? Please explain why or why not. The examiner’s opinion should reflect consideration of the following evidence: i. A February1978 service treatment record showing treatment for a possible contusion of the right knee. ii. A January1979 service treatment record showing that the Veteran reported being involved in a Jeep accident the day before. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current left knee arthritis and/or strain was incurred in or caused by service, to include as due to a January 1979 jeep accident and/or normal wear and tear during military service? Please explain why or why not. The examiner’s opinion should reflect consideration of a January 1979 service treatment record showing that the Veteran reported being involved in a jeep accident the day before. 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.