Citation Nr: 21026801 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-35 652A DATE: May 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Service connection for degenerative joint disease of the right knee, to include as secondary to service-connected left knee disability is remanded. FINDING OF FACT The most probative evidence of record does not show a current bilateral hearing loss disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1999 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in February 2019, when it was remanded for further development. The Board notes there are other issues in appellate status that will be the subject of later Board decisions, as appropriate. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For the purposes of applying the law administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) 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. 38 C.F.R. § 3.385. 1. Entitlement to service connection for bilateral hearing loss is denied The Veteran contends he has bilateral hearing loss due to service. Specifically, he asserts that while working as a food service specialist, he was exposed to huge kettles and crock pots that put out an excruciating loud sound like a loud whistle. For the reasons discussed below, the Board finds that that the Veteran does not have a current bilateral hearing loss disability for VA purposes. Therefore, service connection is not warranted. Service treatment records reveal hearing within normal limits at the Veteran's August 2003 Navy Reserve enlistment examination. The Veteran was afforded a VA audiological examination in June 2016. The examiner indicated that pure tone threshold could not be tested (CNT) as the Veteran volunteered pure tone responses were inconsistent and unreliable. The examiner further indicated that despite re-instruction, the results did not improve, and testing was therefore discontinued. The Veteran was afforded another VA examination in August 2019. The examiner indicated that pure tone threshold could not be tested as the Veteran-volunteered pure tone responses were inconsistent and unreliable. The pure tone air and bone conduction results were inconsistent and unreliable. The examiner explained that speech recognition test (SRT) was out of agreement with volunteered pure tone averages of 65 decibels. Speech discrimination was excellent at a normal volume level. The examiner notes that after continued re-instruction and equipment verification, obtaining reliable results was unsuccessful. The examiner concluded the Veteran had normal bilateral hearing. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds that the competent, credible, and probative evidence reveals that the Veteran does not have bilateral hearing loss disability for VA purposes. On both the June 2016 and August 2019 audiological examinations, the examiners concluded the Veteran has normal hearing. Both VA examination shows that the speech recognition scores were reliable, but that pure tone thresholds were not. Without probative evidence of hearing loss conforming to the requirements in 38 C.F.R. § 3.385, the elements of service connection cannot be established, and the Board need not engage in any further analysis on either a presumptive or direct basis. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit); 38 C.F.R. §§ 3.303 (a), 3.307(a)(3), 3.309(a). While the Veteran believes he suffers from a current bilateral hearing loss disability that is related to service, as a lay person, he is not competent to determine the presence or extent of hearing loss, as such requires medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general 3.385 competence to testify as to symptoms but not to provide medical diagnosis). Thus, his opinion in this regard is not competent medical evidence. The Board finds the VA examination results and opinions of VA examiners to be more probative than the Veteran's lay assertions. The Board notes that, on two separate occasions, VA attempted to capture reliable examination results to assess the Veteran's hearing loss. VA's duty to assist is not unlimited. Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991). VA is not required to administer to the Veteran an unlimited amount of examinations until reliable results can be obtained. Having tried on two separate occasions to test the Veteran's hearing, the Board finds that VA has fulfilled its duty to assist. In summary, the most probative evidence of record indicates that the Veteran does not have bilateral hearing loss disability under 38 C.F.R. § 3.385. Accordingly, the Veteran's service connection for bilateral hearing loss is not warranted, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss, the doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Service connection for degenerative joint disease of the right knee, to include as secondary to service-connected left knee disability is remanded The Veteran contends that his right knee disability is secondary to his service-connected left knee disability. In October 2014, he reported that the limp of his left knee has caused overcompensation and overuse of his right knee. In a March 2016 letter, the Veteran's chiropractor stated that the Veteran's left knee is affecting his functional ability. In accordance with the remand directives, a VA opinion was obtained in August 2019. The examiner opined that the right knee arthritis is less likely than not proximately due to the service-connected left knee and is not aggravated beyond its natural progression by the service-connected left knee. As part of his rationale, the examiner indicated that the Veteran's right knee arthritis is due to wear and tear and aging process. As the Veteran contends that he had to put more pressure on the right knee because of the left knee disability, the Board finds a remand is warranted for adequate rationale. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate VA examiner concerning the claim for service connection for right knee disability. If a new examination is deemed necessary to respond to the question presented, one should be scheduled. After review of the claims file, the examiner should address the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right knee disability is caused by the service-connected left knee, to include to include having to compensate for left knee pain when weight bearing. The examiner should explain why or why not. (b.) Whether is it at least as likely as not that the Veteran's right knee disability has been worsened beyond the normal progression (aggravated) by the service-connected left knee disability, to include having to compensate for left knee pain when weight bearing. Please explain why or why not. 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Asare, 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.