Citation Nr: 21021993 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-30 614 DATE: April 14, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for a respiratory disorder, to include sinusitis, rhinitis, bronchitis, and obstructive sleep apnea (OSA), is remanded. FINDING OF FACT The Veteran does not have a right ear hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2009 to August 2012, including service in Afghanistan for which he was awarded the Combat Action Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2017 video conference hearing. The Board has recharacterized the Veteran’s respiratory claim, as reflected on the title page, to include consideration of all the related disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to be considered for service connection, a claimant must first have a current disability. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding that a recent diagnosis of disability prior to a veteran filing a claim for benefits satisfies element one of service connection); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). 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). 1. Entitlement to service connection for right ear hearing loss is denied. The Veteran asserts that his right ear hearing loss is due to acoustic trauma he experienced as a combat Veteran in Afghanistan. See February 2013 VA Form 21-4138, November 2017 Board Hearing Transcript at 6-8. For the purpose of applying the laws administered by VA, 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. Throughout the appeal period, the Veteran submitted to VA audiological examinations in December 2013 and November 2019. Notably, the Veteran’s audiological examination conducted at the time of his discharge from active duty is not available. See January 2014 Memorandum of Unavailability. Regarding the right ear, the Veteran’s Maryland CNC Word List speech recognitions scores and pure tone thresholds, in decibels, at the December 2013 and November 2019 VA audiological examinations were as follows: Hertz 500 1000 2000 3000 4000 CNC December 2013 10 5 15 5 10 100 November 2019 0 0 10 10 5 98 These findings do not reflect the presence of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Board acknowledges the Veteran’s complaints regarding his difficulty hearing and emphasizes that he is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from complex audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). While the Veteran is competent to report symptoms observable to a lay person, such as having great difficulty hearing, he lacks the required medical training to make conclusions about the level of his hearing impairment. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues); c.f. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). As there is no other VA-compliant audiometric testing during or just before the appeal period that reveals otherwise, there is no competent evidence that demonstrates right ear hearing loss for VA purposes, and the claim for right ear hearing loss is denied on this basis alone. 38 C.F.R. § 3.385; see also Brammer at 225. REASONS FOR REMAND 2. Entitlement to service connection for a respiratory disorder, to include sinusitis, rhinitis, and bronchitis and OSA, is remanded. The Veteran asserts that his sinusitis, non-allergic rhinitis, and bronchitis had their onset during his active duty service and continue to the present. See February 2013 VA Form 21-4138, November 2017 Board Hearing Transcript at 17-18. The Board notes the Veteran has also claimed the respiratory disorder of obstructive sleep apnea (OSA); however, testified that he was aware that he did not have a current diagnosis of OSA and reported symptoms of trouble falling asleep. See November 2017 Board Hearing Transcript at 10, 18. On remand, the Veteran was service-connected for an insomnia disorder per a nexus opinion requested in the December 2018 Board remand. See August 2020 rating decision. As OSA is a respiratory disorder and sinusitis, rhinitis, and bronchitis require remand, the Board finds that the issue of entitlement to service connection for OSA is intertwined with this action. In this regard, the Board notes that the Veteran filed his claim within one year of his discharge from active duty service and at his initial examination in December 2013, he was diagnosed with sinusitis and rhinitis. In June 2014, the Veteran was diagnosed with sinusitis and bronchitis. See June 2014 VA treatment records. The United States Court of Appeals for Veterans Claims (Court) has held that the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, McClain, 21 Vet. App. 321, or when the record contains a recent diagnosis of a disability prior to filing a claim for benefits based on that disability. Romanowsky, 26 Vet. App. 294. Thus, for the purposes of a service-connection claim, the Veteran has a current diagnosis. In this regard, the Board notes that the November 2019 VA examiner concluded that the Veteran has never had a current diagnosis of sinusitis, rhinitis, or bronchitis and that the diagnoses rendered at differing times by differing VA medical treatment providers were all in error. In support of his conclusion, the examiner relied on the Veteran’s report that he has never had any symptoms except frequent epistaxis and relied on a lack of treatment in service. The Board notes the November 2019 VA examiner failed to discuss the Veteran’s lay statements regarding his repeated sinus trouble when deployed to Germany, his continual use of nasal spray both during and post-active duty, or the nasal rinse prescribed for use by VA treatment providers. See November 2013 VA examination report, November 2017 VA treatment records, November 2017 Board Hearing Transcript at 17. The Board notes the Veteran is competent to report that he had repeated issues with his sinuses in service as that is observable to a lay person, as the November 2019 VA examiner noted regarding epistaxis, and the Board finds him credible in this regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). For these reasons, the November 2019 VA examination report is inadequate. Accordingly, an addendum opinion is required on remand. All outstanding treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then, request a medical opinion from an examiner other than the November 2019 VA examiner to determine the nature and etiology of any diagnosed respiratory disorder, to include sinusitis, rhinitis, and bronchitis. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should address the following: (a.) Identify all respiratory disorders diagnosed since August 10, 2012, even if resolved, including sinusitis, rhinitis, and bronchitis. If no diagnosis of these conditions can be rendered, please explain why this is so in light of the VA diagnoses of the same in December 2013 and June 2014. A conclusory statement indicating that all previous diagnoses were rendered in error will render the examination inadequate. For each such diagnosed respiratory disorder, please opine as to whether it is at least as likely as not (50 percent or greater probability) that the disability had its onset during service or is otherwise related to service, to include conceded environmental hazards, documented treatment and reported symptoms therein. In answering this question, the examiner must address the following: a. the Veteran’s exposure to environmental hazards during his combat deployment to Afghanistan; b. his in-service treatment and complaints of: i. fatigue and headaches in November 2009; ii. the complaints of sinus tenderness, fatigue, and headaches in June 2010; iii. the repeated issuance of saline nasal spray for treatment of congestion in June 2010 and November 2011; c. the December 2013 VA diagnosis of sinusitis and rhinitis; d. the June 2014 VA diagnosis of sinusitis and bronchitis; e. the Veteran’s noted history of cocaine abuse; f. the Veteran’s use of tobacco; g. the VA prescribed nasal rinse; h. the Veteran’s statement that he began using nasal spray in service for sinus problems and continued its use to the present; i. the Veteran’s December 2013 lay statement that he suffered frequent nasal congestion that first began on active duty; and j. the Veteran’s November 2017 testimony that his sinus problems began during active duty and continue to the present. In addressing this question, the examiner must assume items (h) through (j) as true, even despite the absence of “objective documentation,” and determine whether a nexus is “medically plausible” based on the same. The examiner is advised that the Veteran is competent to report symptoms and treatment, and these reports must be considered when formulating the requested opinion. The examiner should provide a complete rationale for any opinion given. The absence of evidence of treatment for specific respiratory disorders in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion and any reliance on such will render any opinion inadequate. If unable to opine without resorting to speculation, the examiner should provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.