Citation Nr: 21026497 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-46 079 DATE: May 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for left knee meniscus tear status post arthroscopy is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder, is remanded. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131; 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 from January 1972 to December 1974 and from April 1976 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2020. The hearing transcript is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, to include sensorineural hearing loss, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hearing Loss The Veteran contends that he has a bilateral hearing loss disability related to his service, to include from noise exposure from service, without wearing hearing protection. See September 2020 Board hearing transcript, page 15. The Board notes that the Veteran's military occupational specialty (MOS) was an armor crewman and that he received the Rifle Sharpshooter Badge. As such, the Board finds the Veteran's report of in-service noise exposure to be credible and consistent with the record. The evidence of record establishes that the Veteran does not have a current bilateral hearing loss disability for VA evaluation purposes. The Veteran was afforded a VA examination for his claimed bilateral hearing loss disability in May 2014. The audiological examination report indicates puretone thresholds, in decibels, as follows: 500 1000 2000 3000 4000 AVG. RIGHT 10 15 15 15 30 17 LEFT 10 10 15 15 20 14 Speech discrimination score at that time was 96 percent in the right ear and 100 percent in the left ear. 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The competent medical evidence of record, to include the May 2014 VA examination report, does not demonstrate that these criteria have been met with respect to the Veteran's claimed bilateral hearing loss disability. There is no medical evidence to the contrary which establishes the criteria necessary for a finding of a bilateral hearing loss disability for VA rating purposes. Based on these findings, the Board concludes that the evidence of record demonstrates that the Veteran does not have a hearing loss disability. The Board has considered the Veteran's statements that he has hearing loss in his ears. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although the Veteran is competent to relate what he experiences through the senses, he is not competent to assert that he has hearing loss pursuant to VA criteria. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have a bilateral hearing loss disability for VA purposes. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no disability that resulted from a disease or injury. The claim is denied. REASONS FOR REMAND Left Knee and Acquired Psychiatric Disorder With regard to the issue of entitlement to service connection for a left knee disability, the Veteran testified at a September 2020 Board hearing that he received treatment for knee pain after his discharge from service while working at a company, Gilbarco. He testified to seeking treatment from the company's private physician. See September 2020 Board Hearing Transcript p.10. The Veteran also noted that he received treatment for his left knee at Greensboro Orthopedic, beginning in 2000. The Board notes that the private treatment records from the physician associated with Gilbarco are not associated with the claims file. Additionally, it is unclear if VA has attempted to obtain records from Greensboro Orthopedic prior to 2012, going back to 2000. The Veteran also reported at his Board hearing that he had a post service injury at his work, and a subsequent arthroscopy following such injury. See September 2020 Board Hearing Transcript p. 10. The Veteran's medical treatment records in 2012 and 2013 from Dr. P. McKinney reflect that he experienced such injury, but the worker's compensation report is not of record. As the basis of the worker's compensation claim is unclear, and the records considered in the adjudication of that claim might pertain to the issues remaining on appeal before the Board, those records should also be sought. With regard to the issue of entitlement to service connection for an acquired psychiatric disorder, the Veteran has contended that he has a mental health disorder as a result of witnessing the traumatic event of a soldier's death when he was crushed between two tanks. See December 2016 Veteran statement. The Board takes note of the June 2014 VA memorandum which found that military records advised that, as the Veteran claimed, Private H.L., was killed when he was pinned between two tanks. The Veteran's military personnel records verify that he and H.L. were in the same unit the day before H.L.'s death. Although the personnel records were unable to verify the exact location of the Veteran on the day H.L. was killed, VA resolved doubt in favor of the Veteran and assumed the Veteran witnessed the death of H.L. The Veteran was provided a VA examination for his psychiatric disability, to include PTSD, in August 2014. At that examination the examiner found that the Veteran did not currently meet the criteria for PTSD, although he found that the Veteran had mild anxiety possibly related to the accident in the military, which was significantly improved with his current treatment. However, the examiner further noted that the relationship of the Veteran's anxiety disorder diagnosis to his military service could not be established at the time since he was also continuously abusing alcohol and cannabis. The examiner also found that it was at least as likely as not that the Veteran's current mental health symptomatology is related to his substance abuse, particularly alcohol and that it was less likely than not that the Veteran's substance abuse was secondary to his military service. During the hearing, the Veteran testified that he started seeking treatment at the Vet Center in 2017. These records are not of record. Accordingly, a remand is necessary to obtain them. The matters are REMANDED for the following action: 1. Make all necessary efforts to obtain any outstanding medical records from when the Veteran worked at Gilbarco (1980 to 2018); also request all available medical records from Greensboro Orthopedic for the entirety of the Veteran's treatment, to include from 2000 to 2012. 2. Contact the Veteran and request that he provide specific information regarding any prior claims for Worker's Compensation benefits relating to his left knee, to include in 2012. He should be requested to provide a written release for all pertinent employment records, including all employment health records, documentation pertaining to any claim for worker's compensation benefits, and all clinical records created pursuant to injuries claimed to have resulted from employment. After securing the necessary releases, the RO should request from the appropriate state body copies of its decision pertaining to worker's compensation benefits and the medical evidence relied upon in making its determination. 3. Obtain any outstanding records from the Vet Center dated from 2017 to the present. 4. Obtain any outstanding VA treatment records. 5. After the above development is completed, obtain a VA opinion to evaluate the Veteran's claim for an acquired psychiatric disorder. The Veteran should be scheduled for another VA examination if determined necessary. The claims folder should be made available to the examiner for review in connection with the examination. The examiner must complete the following: a. Confirm and identify any diagnosed acquired psychiatric disabilities. b. Is it at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disability had its onset during active service, or is otherwise etiologically related to his period of service? Explain why or why not. An adequate rationale for all opinions rendered should be provided. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.