Citation Nr: 21028542 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-01 953 DATE: May 11, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a back disorder, to include as secondary to service-connected left ankle arthritis with tendinosis, is remanded. Entitlement to service connection for left sciatica, claimed as secondary to a back disorder, is remanded. Entitlement to service connection for a left hip disorder, claimed as secondary to a back disorder, is remanded. FINDING OF FACT Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to March 1970. He was the recipient of numerous awards and decorations, to include the Combat Air Crew Insignia. The Veteran passed away in January 2020 and the appellant is his surviving spouse, who was accepted as a substitute claimant for the purpose of processing this appeal to its completion in March 2020. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with record. In November 2018, the Board remanded the issues on appeal, as well as a claim for service connection for a left ankle disorder, for additional development. While on remand, an April 2020 rating decision awarded service connection for left ankle arthritis with tendinosis. Thus, as such is a full grant of the benefit sought on appeal with regard to such claim, it is no longer before the Board. Additionally, in March 2019, the Veteran filed a Decision Review Request: Supplemental Claim (VA Form 20-0995) under the modernized appeals system known as the Appeals Modernization Act (AMA) for service connection for a back disorder, left sciatica, and a left hip disorder. Thus, in the April 2020 rating decision, the Agency of Original Jurisdiction (AOJ) adjudicated such issues under the AMA. However, as such issues were not at an eligible stage to opt-in to the AMA, they remain in the legacy system and, along with the claim for service connection for bilateral hearing loss, now return to the Board for further appellate review. Specifically, under 38 C.F.R. § 3.2400, a claimant with a legacy appeal may elect to opt-in to the AMA following issuance of a statement of the case (SOC) or supplemental statement of the case (SSOC). In the instant case, following the Board's November 2018 remand in the legacy system, no SOC or SSOC was issued prior to the receipt of the March 2019 Supplemental Claim. Consequently, there was no valid opt-in and the AOJ's inclusion of such service connection claims in the April 2020 rating decision were in error. 1. Entitlement to service connection for bilateral hearing loss. 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, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record reflects that the Veteran is in receipt of the Combat Air Crew Insignia. As such, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The combat presumption, however, does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service disorders. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). During his lifetime, the Veteran contended that he had bilateral hearing loss that gradually began after his military service, which he became aware of in the late 1970s, that was as a result of in-service noise exposure, to include his combat service in the Republic of Vietnam. As an initial matter, an April 2019 VA examination reflects a current diagnosis of bilateral hearing loss as defined by VA regulations. Furthermore, while his service treatment records (STRs) are negative for any complaints, treatment, or diagnosis of bilateral hearing loss, his in-service exposure to acoustic trauma is acknowledged in light of his combat service. In this regard, the Veteran's April 1966 entrance examination reflected that the pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were -5, -10, -10, N/A, and 0 decibels in the right ear and -5, -10, -10, N/A, and -5 decibels in the left ear. However, prior to January 1, 1967, service departments used American Standards Association (ASA) standards, which must be converted to International Standards Organization - American National Standards Institute (ISO-ANSI) standards, which results in the following pure tone thresholds at the aforementioned tested frequencies: 10, 0, 0, N/A, and 5 decibels in the right ear and 10, 0, 0, N/A, and 0 decibels in the left ear. At a July 1966 naval prep school examination, audiometric testing revealed pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 5, 10, 10, N/A, and 0 decibels in the right ear and 5, 10, 10, N/A, and 5 decibels in the left ear. As converted to ISO-ANSI units, the July 1966 audiometric testing revealed pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 20, 20, 20, N/A, and 5 decibels in the right ear and 20, 20, 20, N/A, and 10 decibels in the left ear. At an October 1967 flight examination, audiometric testing revealed pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were -10, -10, -5, -5, and 25 decibels in the right ear and -5, -10, -10, -5, and -5 decibels in the left ear. As it is unclear whether such thresholds were recorded in using ASA units or ISO-ANSI units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. Thus, as converted to ISO-ANSI units, the October 1967 audiometric testing revealed pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 5, 0, 5, 5, and 30 decibels in the right ear and 10, 0, 0, 5, and 0 decibels in the left ear. Furthermore, in an accompanying Report of Medical History, the Veteran denied currently or previously experiencing hearing loss. In September 1969, audiometric testing was noted to have been conducted using ISO standards. At such time, pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 5, 0,0,5, and 0 decibels in the right ear and 5, 0, 0, 0, and 0 decibels in the left ear. At the Veteran's March 1970 separation examination, audiometric testing was noted to have been conducted using ISO standards. At such time, pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 15, 5, 5, 5, and 5 decibels in the right ear and 10, 5, 5, 5, and 5 decibels in the left ear. In his April 2021 Appellate Brief, the appellant's representative converted all of the foregoing in-service audiometric results from ASA to ISO-ANSI standards; however, as the September 1969 and March 1970 tests were noted to have been conducted using ISO units, such conversion was in error. Thus, his argument that the in-service audiometric testing revealed significant threshold shifts between entrance and separation is based on an inaccurate factual premise. Moreover, as will be discussed further herein, the April 2019 VA examiner, an audiologist with expertise in the evaluation of hearing impairment, reviewed the entirety of the Veteran's in-service audiograms and found no significant threshold shift. In contrast, the Veteran's representative, as a lay person without medical training, is not shown to have expertise in the field of audiology and, thus, his opinion as to the presence of an in-service significant threshold shift is not competent and afforded no probative weight. Moreover, as noted previously, the Veteran himself denied experiencing hearing loss in October 1967 and reported that he first experienced difficulty with hearing acuity in the late 1970's. Nonetheless, in light of the Veteran's acknowledged in-service noise exposure and his report of difficulty hearing, he was afforded a VA examination in January 2011 in order to ascertain the nature and etiology of his bilateral hearing loss. At such time, he reported a gradual onset of hearing loss. He noted that, after his separation from service, he worked in sales, as a realtor, and as a mortgage broker, and indicated that used lawn equipment. While the Veteran had normal hearing on examination, the examiner opined that his reported bilateral hearing loss was not caused by or related to in-service noise exposure. In support of such opinion, she found that the Veteran's separation examination revealed normal hearing bilaterally, which did not support noise-induced hearing loss during service, and the Institute of Medicine (IOM) concluded that, based on current knowledge of cochlear physiology, there was no sufficient scientific basis of the existence of delayed onset hearing loss. At an April 2019 VA examination, the Veteran was noted to be an avionics technician and helicopter gunner during active service. After service, he reported he worked in sales, as a real estate agent and mortgage broker; engaged in woodworking with hearing protection and used lawn equipment without hearing protection; and attended concerts in his young adult years. The examiner opined that the Veteran's currently diagnosed bilateral hearing loss was less likely than not caused by or a result of his military service. In support of such opinion, she found that there was no permanent positive threshold shift greater than normal measurement variability at any frequency in the bilateral ears during service. Specifically, the examiner indicated that she had applied the correction factors for calibration differences between ASA and ISO/ANSI units, and noted that the Veteran had normal hearing at the time of the April 1966 and July 1966 audiometric testing conducted contemporaneously to his entrance to service. Furthermore, the examiner found that the Veteran's March 1970 separation examination likewise revealed normal hearing bilaterally with no significant threshold shifts. Thus, she determined that there was no objective evidence of acoustic trauma or noise injury in either ear from his acknowledged in-service noise exposure. In further support of her opinion, the examiner cited the IOM's 2005 study for the proposition that current knowledge of cochlear physiology does not provide sufficient scientific basis for the existence of delayed onset hearing loss. Consequently, the examiner found that there was no nexus between the Veteran's bilateral hearing loss and his military service. The Board affords great probative weight to the January 2011 and April 2019 VA examiners' opinions as such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In reaching this determination, the Board acknowledges that the January 2011 and April 2019 VA examiners relied, in part, on the IOM (2005) report as a basis for providing a negative opinion, which has qualifying or contradictory statements. McCray v. Wilkie, 31 Vet. App. 243 (2019). However, the Board finds that such does not render the opinions inadequate or diminish their probative value. In this regard, the Board notes that the IOM report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. However, the IOM report's own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term ("unlikely"). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested "a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." The Board also notes that the appellant's representative cited to several medical articles in his April 2021 Appellant's Brief that discuss the possibility of delayed-onset hearing loss in support of her claim. However, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion, Mattern v. West, 12 Vet. App. 222, 228 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In short, articles and treatises tend to be general in nature and tend not to relate to the specific facts in a given appellant's claim. In the present case, the articles cited by the appellant's representative fall into this general category as they do not pertain specifically to this Veteran and are not combined with a favorable opinion rendered by a medical professional addressing his specific case. Thus, such evidence is not probative as to the issue on appeal. Furthermore, to the extent that the appellant's representative alleges that the April 2019 VA examiner failed to cite to the medical articles and treatises he provided, the Board notes that the Court has held that a VA opinion report is adequate if it is based on correct facts and sufficiently informs the Board of the medical expert's judgment on a medical question and the "essential rationale" for the opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that VA examiners do not have a reasons or bases requirement). Where the opinion is lacking in detail, "the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination." Acevedo, 25 Vet. App. at 294. Furthermore, there is a presumption that physicians remain up-to-date on medical knowledge and current medical studies. Monzingo, 26 Vet. App. at 106-7. Thus, the fact that the April 2019 VA examiner did not comment on every medical article or treatise in existence addressing the possibility of delayed onset hearing loss does not diminish the probative value of her opinion. Moreover, despite the citation to numerous articles and treatises, the appellant's representative did not submit or identify a favorable opinion relating the Veteran's bilateral hearing loss to his in-service noise exposure. Notably, there is no such opinion of record. The Board has also considered the Veteran's and appellant's assertions that the Veteran's bilateral hearing loss is related to his in-service noise exposure. However, they, as lay persons, do not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the auditory system and the impact acoustic trauma/noise exposure has on it. Thus, such matter may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's and appellant's opinions as to the etiology of the Veteran's bilateral hearing loss are not competent evidence and, consequently, are afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that bilateral hearing loss manifested to a compensable degree within one year of the Veteran's separation from service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnosis referable to bilateral hearing loss and his hearing acuity was normal upon separation in March 1970. Furthermore, the Veteran himself reported the gradual onset of hearing loss in the late 1970's, and his bilateral hearing loss never reached a compensable level during his lifetime, to include as reflected on the most recent audiometric testing conducted at the April 2019 VA examination. 38 C.F.R. § 4.85, Diagnostic Code 6100. Consequently, presumptive service connection for bilateral hearing loss, to include on the basis of a continuity of symptomatology, is not warranted. Therefore, based on the foregoing, the Board finds that the Veteran's bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim for service connection for bilateral hearing loss. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for a back disorder, to include as secondary to service-connected left ankle arthritis with tendinosis. 3. Entitlement to service connection for left sciatica, claimed as secondary to a back disorder. 4. Entitlement to service connection for a left hip disorder, claimed as secondary to a back disorder. As noted in the November 2018 remand, the Veteran contended that his current back disorder had its onset in service in 1968 following the many instances that he was unable to stabilize himself and would fall backwards on helicopters while serving as a gunner during combat operations in Vietnam or, in the alternative, was caused or aggravated by his now service-connected left ankle disability, to include as a result of an unbalanced gait. In light of the fact that the Veteran received documented treatment for lumbar strain in September 1968, his report of being jostled while serving in a helicopter in Vietnam was consistent with the nature of his combat service, the record reflected current diagnoses of lumbar degenerative disc disease and spondylolisthesis, an August 2017 VA treatment record suggested a relationship to service and his service-connected left ankle disability, and the fact that a September 2011 VA examiner did not consider all relevant facts in offering his unfavorable opinion, the Board remanded the case in order to afford him a new VA examination so as to determine the nature and etiology of his claimed back disorder. In April 2019, the Veteran underwent a VA examination and, while the examiner offered an adequate opinion addressing direct service connection, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing secondary service connection. Specifically, at such time, the examiner opined that the Veteran's diagnosed back disorder, identified as degenerative disc disease (DDD) of the lumbar spine is less likely than not proximately due to, caused by, a result of, or aggravated by his left ankle disability. However, as rationale for such opinion, he only stated that the objective evidence finds absence of the Veteran's DDD of lumbar spine being proximately due to, cause by, result of, or aggravated by his left ankle disability. Such rationale is conclusory and does not provide a basis for the opinion offered. Moreover, there is no indication that the examiner addressed whether the Veteran's reported unbalanced gait impacted his back disorder. Consequently, another remand is necessary in order to obtain an addendum opinion addressing such matter. Furthermore, as the April 2019 VA examiner opined that the Veteran's radiculopathy of the left lower extremity, claimed as left sciatica, is related to his DDD of the lumbar spine, such claim is inextricably intertwined with the claim for service connection for a back disorder remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the claim for service connection for left sciatica must be deferred pending the outcome of the claim for service connection for a back disorder. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Furthermore, as relevant to all three claims, the Board also finds that a remand is necessary for the issuance of a SSOC. Specifically, 38 C.F.R. § 19.31 provides that the AOJ will issue a SSOC if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect. Here, as noted above, pursuant to the November 2018 Board remand, an April 2019 VA examination and accompanying opinions addressed all three issues on appeal. Thus, after completing the development ordered herein, the AOJ must issue an SSOC readjudicating the remaining issues on appeal. Accordingly, the matters are REMANDED for the following actions: 1. Forward the record, to include a copy of this remand, to an appropriate VA examiner so as to obtain an addendum opinion addressing the etiology of the Veteran's claimed back disorder. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's back disorder, diagnosed as DDD, is caused or aggravated by his left ankle arthritis with tendinosis, to include as a result of an altered gait. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the AOJ should readjudicate the appellant's claims for service connection for a back disorder, left sciatica, and a left hip disorder based on the entirety of the evidence, to include such associated with the record since the issuance of the October 2015 SOC, in a SSOC. A copy should be provided to the appellant and her representative, and an appropriate period of time should be allowed for response. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.