Citation Nr: 21025570 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-33 696 DATE: April 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and paranoid schizophrenia, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral (left and right ear) hearing loss began during his service, within a year of his discharge, or is otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 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 in the United States Marine Corps from January 1980 to January 1983. This appeal to the Board of Veterans’ Appeals (Board) is from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded these claims back to the RO for further development and consideration. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends his bilateral hearing loss was caused by the noise exposure he experienced during service as an infantryman. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Since sensorineural hearing loss is a type of organic disease of the nervous system, it may be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran’s separation from 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(a). A disorder first diagnosed after discharge may be service connected if the evidence, including that pertinent to service, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). But competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s DD Form 214 confirms his Military Occupational Specialty (MOS) was infantry, and that responsibility is consistent with him having repeatedly been exposed to loud noise, as he alleges. See 38 U.S.C. § 1154(a). However, that notwithstanding, for service connection to be warranted, it also must be shown that his noise exposure in the military and consequent injury (acoustic trauma) has resulted in a ratable hearing loss disability for VA compensation purposes. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a ratable disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has clarified that a Veteran need not have had hearing loss meeting these § 3.385 requirements while in service, or even during the one-year presumptive period following service for sensorineural hearing loss, especially, as long as there is sufficient hearing loss to now satisfy the requirements of this VA regulation and attribution of the hearing loss to the Veteran’s service, as opposed to other (“intercurrent”) causes. See Hensley v. Brown, 5 Vet. App. 155 (1993). But, while the Veteran has a current diagnosis of hearing loss and sufficient impairment to meet the threshold minimum requirements of § 3.385 to be considered a ratable disability, there is not also the required attribution of his hearing loss to the noise exposure during his service in the infantry or indication of sensorineural hearing loss to a compensable degree within one year of his separation from service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  The Veteran’s service treatment records (STRs) do not show any complaints, treatment or diagnosis of hearing loss. The same is true for during the one-year presumptive period following the Veteran’s separation from service since equally devoid of indication of sensorineural hearing loss to the required compensable degree. In October 2014, the Veteran was afforded a VA examination, but it was determined to be inadequate for rating purposes. The Board consequently remanded this claim in November 2018, and the Veteran therefore was provided an additional VA examination in December 2020. Notably, however, the December 2020 examiner observed that, during the Veteran’s service, there was not a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 4000 Hertz for either ear. The examiner resultantly concluded the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner explained that the record did not show significant puretone threshold shifts during service and, therefore, the Veteran’s hearing loss was less likely as not caused by or a result of military noise exposure. The Board has considered the Veteran’s assertion that his bilateral hearing loss is due to his service. Although laymen are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, namely, the etiology of bilateral hearing loss, it falls outside the realm of common knowledge of a layman. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose this disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also 38 C.F.R. § 3.159(a)(1) and (2).   That is, while the Board readily concedes the Veteran is competent to report difficulty hearing, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in determining the source or cause of audiological disorders such as hearing loss. The Board thus gives more probative weight concerning this to the VA examiner’s unfavorable opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the determinative issue of medical causation). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim, so the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Consequently, the appeal of this claim must be denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board also remanded this claim in November 2018, and the Veteran was provided a mental status examination in October 2019, during which the examiner determined the Veteran’s schizoaffective disorder was less likely than not incurred during his service. The rationale for this unfavorable opinion, in part, was because the STRs did not include any complaints of mental health related symptoms. In addition, the examiner noted that, according to available treatment records, the Veteran’s symptoms did not start until years after his service. The record, however, contrarily indicates the Veteran reported in December 2009 to healthcare providers that he had been experiencing symptoms of paranoid ideations and hallucinations possibly since high school and in the military, but that he was able to ignore them at the time. In addition, the Board sees the Veteran’s military personnel file includes several disciplinary incidents involving the possession of illegal substances and disorderly conduct that may be attributable to an acquired psychiatric disorder. Consequently, an addendum opinion is needed to consider this relevant evidence (i.e. the Veteran’s lay statements and his documented behavioral issues in service) and to address whether, in light of his reports of experiencing symptoms both prior to and during his service, he clearly and unmistakably had pre-existing mental illness that also clearly and unmistakably was not aggravated by his service, meaning worsened beyond its natural progression. See 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304, 3.306. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain an addendum opinion from an appropriate clinician regarding the following: (a.) Did the Veteran clearly and unmistakably have a pre-existing mental disorder when entering service and, if he did, was it clearly and unmistakably not aggravated during or by his service – meaning not worsened at all or, if worsened, not beyond the condition’s natural progression? (b.) If that two-pronged standard is not met, is it alternatively as likely as not that any current mental disorder onset during the Veteran’s service, or, if a psychosis (see 38 C.F.R. § 3.384), manifested to a compensable degree within a year of his separation from service, or is otherwise related or attributable to his service.   [NOTE: Whether the Veteran actually needs to be re-examined (meaning undergo another in-person examination) to provide this additional medical comment is left to the discretion of the clinician designated to provide the addendum opinion.] To assist in making these important determinations, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.