Citation Nr: 21028583 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-28 599 DATE: May 11, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to a temporary total rating of the bilateral feet requiring hospitalization under 38 C.F.R. § 4.29 is denied. Entitlement to a temporary total rating of the bilateral feet requiring convalescence under 38 C.F.R. § 4.30 is denied. REMANDED Entitlement to service connection for a back disability, to include scoliosis is remanded. Entitlement to a certificate of eligibility for specially adapted housing is remanded. Entitlement to service connection for a dental disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a hearing loss disability for VA purposes. 2. The Veteran has not been hospitalized for his bilateral feet disabilities and has not required a period of convalescence in connection with surgery or immobilization during the appeals period. 3. The Veteran has not required a period of convalescence in connection with surgery or immobilization during the appeals period for his bilateral feet disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). 2. The criteria for a temporary total evaluation due to hospitalization in excess of 21 days for bilateral feet disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.29 (2020). 3. The criteria for a temporary total evaluation due to convalescence for bilateral feet disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.29, 4.30 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2006 to July 2010. The claim for service connection for a back disability was remanded in August 2018, April 2020, and September 2020 for development and has been returned to the Board for appellate review. Service Connection 1. Entitlement to service connection for a bilateral hearing loss disability is denied. The Veteran filed a March 2014 claim for service connection for hearing loss disability. See March 2014 VA Form 21-526EZ. He contends that he was exposed to loud noises in service from boilers, heavy equipment, and alarms as a machinist mate. See March 2019 VA examination report. The question for the Board is whether the Veteran has a bilateral hearing loss disability that is etiologically related to, or aggravated by, an in-service disease or injury. An essential element of a claim for service connection is evidence of a current disability. The Board finds that the competent, credible, and probative evidence is against a finding that the Veteran has a bilateral hearing loss disability for VA purposes. 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the 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. See 38 C.F.R. § 3.385. The Veteran was afforded a March 2019 VA audiological examination and the examination report revealed puretone thresholds in decibels recorded as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 15 10 20 15 Left 15 15 15 10 15 The Veteran's speech discrimination testing revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The examiner indicated that the Veteran had normal hearing in the right ear and normal hearing in the left ear. Based on the foregoing, the Board finds the evidence shows that the Veteran does not have a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, including exposure to loud noises and difficulty hearing. See March 2019 VA examination report. To this extent, the Board finds that the Veteran is competent to report that he has difficulty hearing; however, he has not been shown to be competent to provide a diagnosis of a hearing loss disability for VA purposes, as that is based on specific audiometric findings. The Board finds that the clinical evidence of record is more probative than the lay statements. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of hearing loss, hearing acuity thresholds, and hearing loss disability for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In order for the Veteran's hearing impairment to be considered a disability for VA purposes, it must meet the criteria provided under current regulations. While the Board sympathizes with the Veteran's current hearing symptoms; the Board is unable to grant service connection as the Veteran's auditory threshold is not 40 decibels or greater in any of the listed frequencies, at least 26 decibels or greater in at least three of the listed frequencies, nor does he have speech recognition scores using the Maryland CNC Test that are less than 94 percent. 38 C.F.R. § 3.385. As explained above, the Veteran must have a disability for service connection to be granted. Based on the given facts, the preponderance of the evidence is against a finding that the Veteran currently has bilateral hearing disability for VA purposes. Thus, service connection is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to a temporary total rating of the bilateral feet requiring hospitalization under 38 C.F.R. § 4.29 is denied. 3. Entitlement to a temporary total rating of the bilateral feet requiring convalescence under 38 C.F.R. § 4.30 is denied. The Veteran filed a May 2014 claim for temporary total disability for service-connected bilateral feet hammertoes and residual scars disabilities. See May 2014 VA Form 21-526EZ; September 2015 rating code sheet. A temporary total disability rating will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period exceeding 21 days, or has required hospital observation at VA expense for a service-connected disability for a period exceeding 21 days. 38 C.F.R. § 4.29. Under 38 C.F.R. § 4.30, temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). The Board notes that both the hospitalization and convalescence benefits are only available for service-connected disabilities. Review of the Veteran's post-service medical evidence reflects that he has not been hospitalized, had surgery, or otherwise required convalescence for any service-connected foot disability at any point during the appeals period. Nor has the Veteran reported that he has been hospitalized or required a period of convalescence due to surgery or immobilization for another disability. A May 2019 VA treatment addendum indicated the Veteran had hammertoe corrective bilateral foot surgery in service. The April 2015 VA foot examination report indicated the Veteran has not had foot surgery. The April 2015 VA foot examination report indicated the Veteran does not have functional loss for left and right lower extremity attributable to his bilateral feet hammertoes disabilities. Further, the report noted that the Veteran does not use any assistive device as a normal mode of locomotion, although occasional locomotion by other methods may be possible. A September 2015 VA social work progress note indicated the Veteran came into the clinic as a walk-in and stated he needed a homeless verification letter for the shelter he was trying to get into. A letter was provided to the Veteran along with information regarding programs for homeless Veterans. The Veteran stated he had no further questions or concerns. A September 2015 VA general medication note indicated the Veteran had no medical issues and needed a letter for homeless shelter. A March 2020 VA emergency department progress note indicated the Veteran presented to the emergency department because a piece of wood lacerated his foot while he was doing things around the house. The assessment was trauma to the toe by thick piece of wood from coffee table he was making with some numbness and swelling on the right toe and dried blood noticed on examination. Range of motion and strength were intact. The Veteran was discharged the same day in good condition and was ambulatory. In this case, the facts are not in dispute. The evidence does not support the Veteran has been hospitalized for his feet or has required a period of convalescence for his feet due to surgery or immobilization. Thus, this claim must be denied as a matter of law. The law is dispositive in this matter. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In short, entitlement to a temporary total rating of the bilateral feet hammertoes and residual scars disabilities requiring hospitalization under 38 C.F.R. § 4.29 or convalescence under 38 C.F.R. § 4.30 is denied. REASONS FOR REMAND 1. Entitlement to service connection for a dental disability is remanded. Service connection may be awarded for missing teeth due to dental trauma or bone loss in service. In this case, the Veteran has reported getting in a fight in service. See March 2019 VA examination report. An April 2014 VA nursing note indicated the Veteran had missing teeth. A May 2010 STR dental examination noted, "missing 3rds" under other findings. To date, the Veteran has not been afforded a VA dental examination and should be scheduled on remand. 2. Entitlement to service connection for a back disability, to include scoliosis is remanded. The Board regrets the additional delay but finds remand is again needed. By way of history, the March 2019 VA examiner opined that the Veteran's diagnosed lumbosacral strain and mild levoscoliosis L5, are less likely than not incurred in or caused by the back pain during medical exam during service. The examiner stated the Veteran was in service from March 2006 to July 2010 and the May 2019 x-ray noted the scoliosis to be congenital. The examiner explained that there are no service treatment records that show complaints of back pain or treatment for back pain during active duty. The examiner determined a nexus cannot be established. In an October 2019 addendum, the VA examiner opined there is no clear and unmistakable evidence that the Veteran's back disability existed prior to service because there is no record of a lumbar spine x-ray before service to verify any lumbar disability. The examiner further opined that it is at least as likely as not that Veteran incurred superimposed disease or injury due to service because the Veteran had back pain on exit exam in July 2010 and had no back pain prior to service. The examiner also opined that it is less likely than not that the Veteran's back disability was aggravated beyond natural progression during service because the Veteran had mild low back pain and x-ray of the lumbar spine showed no disc arthritis. In April 2020 the Board remanded the claim for clarifying opinion. The Board found that the October 2019 examination to be inadequate for rating purposes because, while the examiner addressed whether there is clear and unmistakable evidence that the Veteran's back disability existed prior to service, the examiner did not opine whether the Veteran's scoliosis is a congenital defect or disease or provide a rationale to that effect. As there was insufficient medical evidence in the record to determine whether the Veteran's scoliosis constitutes a congenital defect or a compensable disease, remand for addendum was needed. Thereafter, in a June 2020 VA addendum opinion, the examiner noted "scoliosis congenital defect only." However, the examiner did not address whether the Veteran had any back disorder in service that was superimposed, to include the diagnosed low back strain. Thereafter, in a September 2020 Board remand, the Board accepted that the June 2020 VA examiner concluded, the Veteran's scoliosis is a congenital/developmental "defect" (and not, instead, a congenital/developmental "disease"). Further, the Board noted the examiner found that scoliosis clearly and unmistakably pre-dated his service and clearly and unmistakably was not aggravated by his service. However, the Board found the examiner's rationale did not cite to any specific medical evidence or authority supporting its conclusion and remanded for addendum opinion. In an October 2020 addendum opinion, the examiner did not address whether the Veteran had any back disorder in service that was superimposed, to include the diagnosed low back strain. Thus, remand for addendum opinion is again necessary. 3. Entitlement to a certificate of eligibility for specially adapted housing is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for a back disability could significantly impact a decision on the issue of eligibility for assistance in acquiring specially adapted housing, the issues are inextricably intertwined. A remand of this claim is therefore also needed. The matters are REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. After the above development is completed, the AOJ should arrange for a VA dental examination of the Veteran to determine the nature and likely cause of any dental disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify all current dental disorders, to include missing teeth. (b.) If the Veteran is missing any teeth, indicate (i) whether the missing teeth are due to loss of substance of the body of the maxilla or mandible (as opposed to the alveolar process), (ii) if the loss of substance of the body of the maxilla or mandible is due to trauma or disease such as osteomyelitis (as opposed to periodontal disease), (iii) if the loss of masticatory surface can be restored by suitable prosthesis. Please explain why or why not. The examiner should address: (1) the Veteran's report of getting in a fight in service; (2) the April 2014 VA nursing note that the Veteran had missing teeth; and (3) the May 2010 STR dental examination note of "missing 3rds" under other findings. 3. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any back disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Did the Veteran have any additional back disorders in service, to include his diagnosed low back strain that were superimposed on his congenital defect of scoliosis. Provide the basis for your opinion and explain what evidence in the record and/or medical treatise evidence supports your conclusion. The examiner should address the March 2019 VA examination report, which indicated the Veteran had a back strain diagnosed in 2008 and the Veteran's reported back pain since getting in a fight in service. (CONTINUED ON NEXT PAGE) 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Schick, 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.