Citation Nr: 21025480 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-28 024A DATE: April 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral foot fungus is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not have its onset in service, or manifest to a compensable degree within one year of service discharge and is not otherwise related to service. 2. The Veteran’s onychomycosis and tinea pedis did not have their onset in service and are not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for onychomycosis and tinea pedis, claimed as bilateral foot fungus are not met. 38 U.S.C. §§ 1110, 1131, 1153, 5103, 5103A, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1976 to October 1978. In May 2018, he effectively withdrew his Board hearing request. In September 2018, the Board remanded these issues for additional development. Service Connection The Veteran seeks entitlement to service connection for bilateral hearing loss and bilateral foot fungus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Continuity of symptomatology may also provide a basis for a grant of service connection for diseases defined as “chronic” by VA, which includes hearing loss. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. bilateral hearing loss The Veteran is seeking service connection for bilateral hearing loss that he contends had its onset during service as a result of acoustic trauma experienced in service. 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 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory 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 zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id.; Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). A December 2020 VA audiogram confirms the Veteran currently has bilateral hearing loss disability for VA purposes. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. The Veteran’s DD-214 shows he served as an administrative specialist, a military occupational specialty (MOS) not typically associated with routine exposure to hazardous noise levels. However, the Board has also considered his assertion that he was exposed to noise during a basic training explosion exercise, thus, it is plausible that he had some acoustic trauma in service. 38 U.S.C. § 1154(a). However, based on the evidence, the Board finds that service connection for hearing loss is not warranted. There are no findings or diagnosis of hearing problems shown in service treatment records, including at separation. Audiometric testing at enlistment in 1976 shows puretone thresholds in the right ear of 15, 15, 10, 10, and 10 decibels at 500, 1,000, 2,000, 3,000, and 4,000 Hz respectively, and for the left ear at the same frequencies were 10, 10, 10, 10, and 10 decibels. Moreover, the Veteran’s 1978 separation audiogram shows an improvement in hearing sensitivity, when compared to these results noted at entry, with puretone thresholds in the right ear of 5, 5, 10, 5, and 15 decibels at 500, 1,000, 2,000, 3,000, and 4,000, Hz respectively, and for the left ear at the same frequencies, 5 ,5 5, 5, and 5 decibels. Neither of these in-service audiometric testing results reflect hearing thresholds that meet the criteria for disability under VA regulations. See 38 C.F.R. § 3.385. There is also no medical evidence suggesting hearing loss was diagnosed within the one-year presumptive period after service. 38 C.F.R. §§ 3.307, 3.309. Likewise, there is insufficient evidence of continuity of symptoms to enable an award of service connection under the provisions pertaining to chronic diseases. Fountain, supra. The first pertinent clinical records associated with the claims file is a November 2016 private medical report shows a diagnosis of bilateral hearing loss but did not include audiologic exam results. The private physician then opined that the Veteran’s hearing loss was “secondary to high noises during military operations.” See Medical Data Review, from C.E Mora Quesada, dated November 25, 2016. Although VA outpatient treatment records reference hearing aids as early as 2010, even this date is decades years after discharge in 1978. See VA Nursing Note, dated November 22, 2010. There is also no medical opinion linking hearing loss to the Veteran’s military service. When examined by VA in December 2020, the Veteran reported exposure to hazardous noise from an explosive exercise during basic training and he did not have ear protection. After reviewing the file (including the Veteran’s history of in-service noise exposure), the audiologist concluded that the Veteran’s hearing loss was less likely than not caused by, or a result of, military noise exposure. It was explained that noise-induced hearing loss or threshold shifts occur within hours of the hazardous noise event and that the Veteran had normal hearing levels after his reported noise exposure. Citing the American College of Occupational and Environmental Medicine (ACOEM), the audiologist noted that the available evidence does not indicate that previously noise-exposed ears are more sensitive to future noise exposure. There is also insufficient evidence to conclude that hearing loss due to noise progresses once the noise exposure is discontinued. Nevertheless, on the basis of available data, which evaluated the normal recovery process, it is unlikely that such delayed effects occur. See December 2020 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). Based on the evidence in this case, the Board finds that service connection for hearing loss is not warranted. The fact that the Veteran was exposed to some degree of noise during service does not by itself establish a basis for the grant of service connection. Rather, the noise exposure must cause the hearing loss. As noted above, service treatment records are entirely negative for complaints of such audiological problems, and there is a lengthy period between service and the first documented complaints decades later. Moreover, the Board affords significant weight to the VA audiologist’s opinion that the current hearing loss is not related to service. The VA opinion is both probative and persuasive medical evidence as it is based upon a review of the file, including the Veteran’s reported history of in-service noise exposure. The examiner provided a cogent rationale based upon the documented clinical and service history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). Careful consideration has also been given to the private opinion which, while supportive of the claim, is limited in terms of its ultimate probative value. The physician did not explain what evidence supported the conclusion that the Veteran’s hearing loss was related to service or reference any clinical data or other evidence to support the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Therefore, the private medical opinion, while not discounted entirely, is entitled to less probative weight in view of the remaining evidentiary record. To the extent the Veteran asserts his hearing loss is nevertheless etiologically related to service, such an assertion treads into the realm of medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). In any event, the probative value of his belief is outweighed by that of the audiologist, who clearly does have the education, training and experience to address the etiology. Accordingly, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). bilateral foot fungus The Veteran seeks entitlement to service connection for bilateral foot fungus. He states that he developed dry, itchy, scaling skin on both feet since service that has continued since that time. See Medical Data Review, from C.E Mora Quesada, M.D., dated November 25, 2016. Service treatment records are entirely negative for bilateral foot complaints. At his separation physical in 1978, the Veteran stated that he was in good health and specifically denied a history of foot trouble or skin diseases. The earliest evidence (documentation) of any pertinent symptoms or complaints is found years after service. The post-service record includes an August 2010 VA treatment note indicating a history of toenail fungus. Also, of record is a November 2016 private medical record indicating the Veteran’s history of “dry skin, itching, scales, and pruritus in feet areas since active duty. The private physician then opined that the Veteran’s dermatophytosis was related to his military service. See Medical Data Review, from C.E Mora Quesada, dated November 25, 2016. When examined by VA in December 2020, the Veteran reported a history of bilateral foot fungus (tinea pedis) that had persisted for years with scaly skin and itchiness, but that had recently resolved with the use of topical creams with no sequela. He also reported a history of toenail fungus (onychomycosis) since 2010. Examination revealed current thick, yellow, brittle toenails consistent with onychomycosis but no evidence of tinea pedis. After examination and review of the record, the examiner found there were no signs and or symptoms to support a diagnosis of tinea pedis (bilateral foot fungal infection). The examiner opined that the Veteran’s current onychomycosis was less likely than not (less than 50 percent probability) due to military service. The examiner explained that although the Veteran reported a foot fungal infection dating back to basic training, there is no clinical and objective evidence to support that assertion. The examiner noted the lack of pertinent complaints during service and that treatment records were absent for symptoms of tinea pedis or onychomycosis (bilateral foot fungal infection) until 2010. Referring to the November 2016 medical statement, the examiner noted that although it states that the Veteran had a foot fungal infection since active duty, there was no clinical evidence from a physical examination to support the claim. Furthermore, the statement was written in 2016 years after active military service. See December 2020 VA Medical Opinion DBQ. Based on the evidence in this case, the Board finds that service connection for bilateral foot fungus is not warranted. As noted above, service treatment records are entirely negative for complaints of such foot or skin problems, and there is a lengthy period between service and the first documented complaints years later. Moreover, the VA opinion is both probative and persuasive medical evidence as it is based upon a review of the file, and supported by sufficiently clear and well-reasoned medical rationales consistent with the verifiable facts regarding the Veteran’s contentions. The examiner provided a cogent rationale based upon the documented clinical and service history. See Nieves-Rodriguez supra. (Continued on the next page)   On the other hand, the private medical opinion, while supportive of the claim, is limited in terms of its ultimate probative value as the physician did not explain what evidence in the Veteran’s treatment records supported his conclusion a the Veteran’s foot problems (dermatophytosis) was related to service, and did not reference any clinical data or other evidence as rationale. See Hernandez-Toyens, supra. Therefore, the private medical opinion, while not discounted entirely, is entitled to less probative weight in view of the remaining evidentiary record. To the extent the Veteran argues that a relationship exists between his current onychomycosis and service, such an assertion treads into the realm of medical expertise. Jandreau supra. In any event, the probative value of her belief is outweighed by that of the medical examiners, who clearly do have the education, training and experience to address the etiology of skin disorders. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bryant, Jeana R 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.