Citation Nr: 21027638 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-03 678 DATE: May 6, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for acute strep throat/pharyngitis and peritonsillar abscess (claimed as throat condition) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left ear hearing loss is related to his active service. 2. The preponderance of the evidence is against finding that the Veteran's acute strep throat/pharyngitis and peritonsillar abscess (claimed as throat condition) began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for acute strep throat/pharyngitis and peritonsillar abscess (claimed as throat condition) are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to December 1981. These matters return to the Board of Veterans' Appeals (Board) after an April 2019 Board decision remand an appeal from a July 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying service connection for bilateral hearing loss and a claimed throat condition. In January 2019, the Veteran testified before a Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is of record. The Board notified the Veteran in a March 2021 letter that the VLJ who held the hearing is no longer at the Board, and offered him the opportunity to appear for another hearing. As the Veteran did not respond within 30 days of the Board's letter, or otherwise indicate that he wished to participate in another hearing, the Board will proceed with reviewing the appeal. In a February 2021 rating decision, the RO granted service connection for right ear but denied service connection for left ear hearing loss. On the same day in February 2021, the RO issued a Supplemental Statement of the Case and returning left ear hearing loss and the throat condition to the Board. The Board finds that the ordered additional development has been substantially complied with and provides this decision on the merits. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in the line of duty in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish service connection the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence regarding a matter of any issue material to the determination of the matter, the benefit of doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for left ear hearing loss The Veteran contends that he has left ear hearing loss due to his exposures to acoustical trauma in service. The Veteran also asserts that his current hearing loss could have been caused by and/or aggravated by his throat condition. Noise exposure and current hearing loss for VA purposes have been conceded. Therefore, the only question before it the Board is of medical nexus. Turning to the evidence of record, the Veteran has undergone several hearing examinations by the VA and private examiners. However, only the July 2020 VA examination provides opinions on service connection. At this examination, the VA examiner provided a positive nexus opinion for right ear hearing loss and a negative nexus opinion on left ear hearing loss. To explain the difference in the opinion, the examiner stated, "there is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise." Based on this, the examiner provided a negative nexus opinion for the left ear. Review of the Veteran's entrance and separation audiograms, included in the Veteran's service treatment records, shows an increase from 0 to 10 decibels (dB) at 500 Hertz (Hz), 15 to 20 dB at 2,000 Hz, and 10 to 15 dB at 4,000 Hz from the time of his induction until the time of his separation from service. The VA examiner stated that these shifts are not be beyond "test variability," but did not explain why such could not also constitute a permanent threshold shift or evidence of a later diagnosed hearing disability. Moreover, the examiner's opinion is based, in large part, on the absence of hearing loss (or a threshold shift) shown during service, and thus does not adequately address whether the Veteran's current hearing loss (even if first diagnosed after service) is related to his conceded in-service noise exposure. Thus, the July 2020 examiner's opinion is given no probative weight. Taking into account that the Veteran was exposed to acoustic trauma in service, that the same trauma was granted a nexus for slightly greater shifts in the right ear, the Board grants the Veteran the benefit of the doubt that these shifts are not just due to testing variability. As such, the evidence of record shows permanent threshold shifts and hazardous noise exposure in service. These are the exact same reasons the July 2020 VA examiner provided for a positive nexus for the Veteran's right ear for service connection. Accordingly, the Board finds that the evidence is at least in equipoise as to the Veteran's claim of entitlement. Therefore, resolving reasonable doubt in the Veteran's favor, he is entitled to service connection for left ear hearing loss. 38 C.F.R. § 3.303(d). Because service connection is granted on a direct basis, the Board finds no need to address secondary service connection or aggravation, such as in-service infections of the throat. 2. Entitlement to service connection for acute strep throat/pharyngitis and peritonsillar abscess (claimed as throat condition) The Veteran contends that his throat condition began and is a direct result of his active service. At an August 2020 examination, the Veteran was found to have an ongoing disease, peritonsillar abscess that was being treated by antibiotics. As such, the first element of service connection (a current disability) is met. The evidence of record establishes various in-service events, including a diagnosis of pharyngitis in August 1980 and noted throat trouble in August 1981. As such, the second element of service connection (an in-service incurrence) is met. The service treatment records do not show that that strep throat was not treated, and there are no follow up treatments for the condition in service. The Veteran complained of throat trouble on his September 1981 separation physical questionnaire. The separation physical examiner noted history of uncomplicated strep throat a couple of years ago that was treated with penicillin. The separation physical found the Veteran's mouth, throat, sinuses, lungs, and chest to be normal at separation. The record contains two negative nexus opinions for the Veteran's throat condition after the April 2019 remand. The January 2021 opinion is found to be more probative on the issue of nexus because it better addresses the evidence of record and Veteran's lay statements. The January 2021 VA examiner opined that the Veteran's current throat conditions are less likely than not related to his in-service occurrence of acute pharyngitis/strep throat while on active duty. The examiner rationalized that the in-service incidence of strep throat was acute and resolved itself with treatment. The examiner explained that strep throat is caused by bacteria and can recur with each new exposure to the bacteria. As further explanation, the examiner relayed that each new exposure to the bacteria can lead to a new infection and that a strep infection is not chronic. In reviewing the Veteran's service treatment records the examiner described the Veteran's in-service pharyngitis/step infection as "acute." Regarding the post-service medical evidence, the examiner noted that the Veteran was treated for pharyngitis in 1998 and for an abcess in 2003; the examiner highlighted that when the Veteran sought treatment for his throat post-service, the Veteran mentioned an onset and symptoms for one to two weeks prior to the visit, and did not mention chronicity. According to the examiner, none of the records for treatment identified chronic pharyngitis, only intermittent sore throats associated with a cold and cough. The examiner commented that the Veteran's statements of self-treatment of his "chronic" symptoms is not supported by the evidence. The examiner commented: Surely if complaints were as troubling as noted in [the prior examinations] and remand, the [V]eteran would have reported them, yet there are none despite numerous opportunities to do so[,] in addition to the already documented acute intermittent sore throats. The Board acknowledges that the Veteran provided testimony that he believes his peritonsillar abscess and pharyngitis are due to his service and continued from service to present. Unfortunately identifying the cause of peritonsillar abscess and infections such as pharyngitis, streptococcus or other infections or conditions, is a medically complex issue because the mechanism and progression of illnesses are not observable and because there are multiple possible causes for the symptoms, and these are also not observable. The Veteran, as a layperson, is not competent to provide such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Moreover, the Veteran's claims of no change in symptoms that have been ongoing, several times a year, are inconsistent with the Veteran not seeking treatment post-service until 1998, many years after his military discharge, as well as his post-service reports of experiencing symptoms for only one to two weeks at the time he sought treatment. Given the Veteran's contradictory reports in this regard, the Board does not find the Veteran's statements regarding a continuity of symptoms since service to be credible. Based on the Veteran's own complaints that the symptoms have only been present for one to two weeks prior to each sore throat and resolving shortly thereafter on antibiotic treatment (as reflected in the medical treatment records), the 17 year gap between service and the first record of post-service treatment, the peritonsillar abscess being first identified in June 2003 and being absent at all prior examinations (including the in-service assessments), the Board finds that the examiner's nexus opinion to be more probative that the Veteran's lay statements regarding a continuity of symptoms since service. The January 2021 examiner's opinion is the most probative evidence of record that speaks to the question of whether the Veteran's current throat conditions are related to or began during his military service. The Board finds the January 2021 opinion to be highly probative because the examiner's opinion better accounts for all the evidence of record, including consideration of the Veteran's lay assertions. The January 2021 examiner provided adequate rationale, and the facts discussed by the examiner accurately reflect the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no probative medical evidence of record that rebuts the January 2021 opinion against the claim or otherwise diminishes its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Accordingly, the preponderance of the probative evidence of record is against the Veteran's claim and the doubt rule does not apply in this case. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, service connection for a throat condition must be denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.