Citation Nr: 21021352 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-09 457 DATE: April 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED An initial compensable rating for residuals of a right fifth finger fracture is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a right fourth finger disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDING OF FACT The Veteran does not have current bilateral hearing loss to an extent recognized as a disability for VA purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110,1131; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1986 to October 1997, May 2004 to January 2005, and December 2008 to October 2010, with additional Reserve service. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in February 2020 for additional development. 1. Entitlement to service connection for bilateral hearing loss is denied. Service connection may be established for a disability resulting from injury or disease incurred during or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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 asserts that his bilateral hearing loss is due to his in-service exposure to hazard noise. His service medical records contain treatment for eustachian tube dysfunction in March 1987. The Board concedes in-service noise exposure as consistent with the circumstances of the Veteran’s service as a pilot. 38 U.S.C. § 1154(a). The claim of service connection for bilateral hearing loss must be denied because there is no competent evidence of any current bilateral hearing loss as defined by VA at any time since the Veteran’s claim of service connection for bilateral hearing loss was received in February 2013. Specifically, during the Veteran’s November 2020 VA examination, his right ear hearing acuity was as follows: 5 decibels at 500 Hertz; 10 decibels at 1,000 Hertz; 15 decibels at 2,000 Hertz, 20 decibels at 3,000 Hertz, and 20 decibels at 4,000 Hertz. His left ear hearing acuity was as follows: 5 decibels at 500 Hertz; 5 decibels at 1,000 Hertz; 15 decibels at 2,000 Hertz, 25 decibels at 3,000 Hertz, and 20 decibels at 4,000 Hertz. The Veteran’s Maryland CNC speech recognition score was 96 percent in the right ear and 98 percent in the left ear. The Veteran has not undergone any other reported hearing examinations during the claim period and there is no medical or lay evidence of any other treatment for bilateral hearing loss during the claim period. He is certainly competent to report the symptoms and history of his claimed bilateral hearing loss, and the Board has no legitimate basis to challenge the credibility of his contentions. 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); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the determination of whether a Veteran’s bilateral hearing loss constitutes a hearing disability for VA purposes is determined by a mechanical application of the definition found in 38 C.F.R. § 3.385 to audiometric (pure tone threshold and Maryland CNC) testing results. As application of 38 C.F.R. § 3.385 reflects that the Veteran does not have current bilateral hearing loss under VA law at any time since his claim was received in February 2013, service connection for this disability is not warranted. The benefit-of-the-doubt doctrine is therefore not helpful to the Veteran in this instance and the claim of entitlement to service connection for bilateral hearing loss must be denied. REASONS FOR REMAND 3. An initial compensable rating for residuals of a right fifth finger fracture is remanded. The January 20201 supplemental statement of the case (SSOC) does not include the Veteran’s initial higher rating claim for the right fifth finger disability. Therefore, upon remand the AOJ should issue a SSOC including the Veteran’s initial higher rating for the right fifth finger disability. 4. Entitlement to service connection for a right shoulder disorder is remanded. 5. Entitlement to service connection for a right knee disorder is remanded. 6. Entitlement to service connection for a left knee disorder is remanded. The Board acknowledged in the February 2020 remand that the Veteran has asserted that his bilateral knee and right shoulder disorders were due to the “wear and tear” of his Marine service, which included participation in parachute jumps and performing over 30 static line jumps while wearing a 75-pound rucksack, that have continued since service. In this regard, the Veteran is competent and credible as to his contentions of continuity of symptoms since service, and the examiner did not discuss this lay evidence. The VA examiner impermissibly ignored the Veteran’s lay testimony. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (finding that the Board errs when it relies on a medical opinion that impermissibly rejects the veteran’s lay history solely because it is not corroborated by medical records). As such, the Board finds that the October 2020 VA examination, to include the January 20201 addendum opinion, is noncompliant with the February 2020 remand instructions. Accordingly, the claims are remanded for an addendum opinion. See Stegall v. West, 11 Vet. App. 268 (1998). 7. Entitlement to service connection for a right fourth finger disorder is remanded. The Veteran was afforded a VA finger examination in October 2020. The examiner found no evidence of a 4th digit disorder and did not diagnose him with a disability. However, functional impairment of the ring finger was identified, but no nexus opinion was furnished. See October 2020 VA examination report (noting loss of range of motion following repetitive use). The Board notes that that a disability for VA compensation purposes exists where pain causes functional impairment, even if there is no diagnosis connecting the pain with a current underlying condition. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, on remand, an opinion should be obtained regarding the Veteran’s ring finger functional impairment and any outstanding treatment records should also be secured. Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then obtain an addendum opinion regarding the etiology of the Veteran’s right fourth digit, right shoulder, right knee, and left knee disorders. No additional examination of the Veteran is necessary unless the reviewing examiner deems otherwise. Following a review of the claims file, the examiner should address the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s functional impairment of the right fourth digit, right shoulder, right knee, and left knee disorders had their onset in or are otherwise related to service, to include as the result of the cumulative impact of his duties that included repetitive heavy lifting of a rucksack for physical training (around 75 pounds) related to his military occupational specialty (MOS) as a pilot, air controller, and combat engineer officer? In addressing this question please discuss: (1) the service treatment record reflecting a complaint of a right shoulder tear in June 1986; (2) the August 1986 right knee trauma; (3) the February 1987 fourth digit volleyball injury; (4) the Veteran’s report of right shoulder problems starting during service attributed to constant lifting of heavy objects and an obstacle course injury; (5) his September 2004 motor vehicle accident; (6) his report of bilateral knee pain as a result of performing static line jumps, parachute jumping, heavy lifting, and sitting in a cockpit for 1000 hours due to the routine physical demands of his MOS; (7) his private treatment records reflecting complaints of constant pain and tightness in the shoulders in October 2007, March 2008 and August 2008 as well as his complaint of pain and stiffness in the trapezius in March 2009 since his 1986 injury; and (8) private treatment records reflecting numbness and decreased sensation in the fourth digit in July and December 2001. In addressing this question, the examiner must assume items 4 and 6 as true, even despite the absence of “objective documentation.” (b) Please state whether the Veteran’s right shoulder strain, right knee strain, left knee strain, and functional impairment of the right fourth finger (see October 2020 VA examination report) are medically consistent with the symptomatology reported by the Veteran above. A complete rationale shall be given for all opinions and conclusions expressed. 4. Issue a SSOC that includes the Veteran’s initial higher rating claim for the right fifth finger disability. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.