Citation Nr: 21024145 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-27 224 DATE: April 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. FINDING OF FACT The Veteran does not have a current hearing loss disability. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 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 October 1986 to October 1996 and May 2004 to October 2004. Evidence affiliated with the claims file also reflects that he served in the Reserve from April 1986 to October 1986 and October 1996 to April 1988. Evidence affiliated with the claims file also indicates that the Veteran served in the National Guard from May 1999 to July 1999. Evidence associated with the claims file also reflects that the Veteran served in the Reserve and National Guard for an undisclosed period after July 1999 until his retirement. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board previously remanded this matter in January 2020. 1. Bilateral Hearing Loss Service connection generally will be awarded when a veteran has a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link (“nexus”) between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss as an organic disease of the nervous system, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptomatology after service if the condition is noted during service (or in a presumptive period) but not shown to be chronic at the time. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss (as an organic disease of the nervous system) if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims service connection for bilateral hearing loss, which he believes was caused by in-service noise exposure. In support, the Veteran cites his level of in-service acoustic trauma and report of having hearing loss since service. For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels of greater; or when the auditory puretone 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in section 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley, 5 Vet. App. at 159. The Veteran was initially examined for his hearing loss in July 2013. The puretone thresholds for the left ear measured as 5 decibels at 500 Hz; 5 decibels at 1000 Hz; 10 decibels at 2000 Hz; 10 decibels at 3000 Hz; and 5 decibels at 4000 Hz. The puretone thresholds in his right ear measured as 5 decibels at 500 Hz; 10 decibels at 1000 Hz; 5 decibels at 2000 Hz; 5 decibels at 3000 Hz; and 10 decibels at 4000 Hz. The Veteran’s speech recognition scores from the Maryland CNC Test were 98 percent in the left ear and 100 percent in the right ear. The measurements taken during this examination reflect that the Veteran’s hearing was within normal limits. When the Veteran visited the VA in May 2015, he stated that he was experiencing hearing loss. Although not clear as to which measurements correspond to which ear, the puretone thresholds for one ear measured as 10 decibels at 500 Hz; 10 decibels at 1000 Hz; 15 decibels at 2000 Hz; 10 decibels at 3000 Hz; and 15 decibels at 4000 Hz. The puretone thresholds for the other ear measured as 10 decibels at 500 Hz; 10 decibels at 1000 Hz; 10 decibels at 2000 Hz; 5 decibels at 3000 Hz; and 10 decibels at 4000 Hz. Even though it is not indicated which speech recognition test was used, the Veteran was found to have word recognition within normal limits. The examination report reflects that the Veteran’s hearing again measured within normal limits, even with shifts in puretone thresholds in each ear. See May 2015 VA Audiology Consult (with measurements submitted in April 2020). Since the Veteran’s May 2015 evaluation at the VA, he has not reported hearing loss to his VA providers. Furthermore, a March 2020 VA record indicates that the Veteran’s hearing was intact. See March 2020 VA Primary Care Outpatient Initial Evaluation Note. Accordingly, the Veteran’s audiometric reports have not reflected auditory thresholds of 40 decibels of greater, or auditory thresholds for at least three of the relevant frequencies of 26 decibels or greater, or Maryland CNC speech recognition scores of less than 94 percent in either ear. See 38 C.F.R. § 3.385. There is simply no evidence that the Veteran has, at the current time or at any point during the pendency of his claim, hearing loss as contemplated by 38 C.F.R. § 3.385. In reaching this determination, the Board does not question the sincerity of the Veteran’s reports of difficulty hearing and acknowledges that, as a layperson, he is competent to report that he has difficulty hearing. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Unfortunately, as a layperson, the Veteran does not have the requisite expertise to provide a competent opinion as to whether he has a current hearing loss disability in accordance with VA standards, as such matters require medical expertise. Importantly, the Veteran’s hearing was tested at least twice during the pendency of the claim and at no point did puretone thresholds or speech recognition scores rise to the level of a disability for VA purposes. 38 C.F.R. § 3.385. Absent any current diagnosis of a hearing loss disability in accordance with VA standards, an award of service connection for hearing loss is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a hearing loss disability is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Bilateral Foot Disability Unfortunately, another remand is warranted. The Board sincerely regrets the additional delay; however, further evidentiary development is necessary before the Veteran’s claim for service connection for a bilateral foot disability can be adjudicated on the merits. As a preliminary matter, the Board notes that the Veteran had various periods of service not only via active duty, but also with the Reserve and National Guard. Even though there are service treatment records and service personnel records associated with the claims file reflecting the Veteran’s education, performance, assignments, points, and awards, the precise dates of all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran’s periods of ACDUTRA and INACDUTRA. Furthermore, the as the Board acknowledges the possibility and probability that the Veteran’s bilateral foot disability manifested or resulted from said period of ACDUTRA and/or INACDUTRA, any and all outstanding service treatment records during ACDUTRA and INACDUTRA should also be obtained and associated with the claims file. Additionally, an opinion should be obtained as to whether the Veteran’s bilateral foot disability is etiologically linked to his ACDUTRA and/or INACDUTRA. The Board also acknowledges receipt of an October 2020 opinion concluding that the Veteran’s bilateral foot condition was less likely than not the result of his military service. As rationale, the examiner found that there was no evidence of a foot injury in service. However, the Veteran’s service treatment records reflect that he injured his right foot. See May 1992 Emergency Care and Treatment Record. Also, the examiner found that the Veteran did not have any foot injuries from 1999 forward; however, there are outstanding service treatment records for the Veteran’s Reserve and National Guard service. Therefore, the Board finds that the October 2020 opinion is based on an inaccurate factual premise and consequently is inadequate to determine the etiology of the Veteran’s bilateral foot disability. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Therefore, the Board finds that a new opinion should be obtained to determine the nature and etiology of the Veteran’s bilateral foot disability. The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard, a report detailing the Veteran’s award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of ACDUTRA and INACDUTRA must be identified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. Any and all outstanding service treatment records from the Veteran’s Reserve and National Guard service should also be obtained and associated with the claims file. 2. After completing the foregoing development, forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all bilateral foot condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all bilateral foot condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA. In formulating his or her opinion, the clinician should consider and address all relevant competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s VA medical records; and (iii) The Veteran’s competent lay statements regarding his first-hand experiences in service and the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s bilateral foot condition(s) is/are less likely than not due to active duty service, ACDUTRA, and/or INACDUTRA, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.