Citation Nr: 21031229 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-09 417 DATE: May 20, 2021 ORDER Entitlement to service connection for a left hand condition is denied. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. There is no currently diagnosed disability manifested by a left hand condition that was incurred in or caused by service, and any reported symptoms do not amount to functional impairment of earning capacity. 2. The evidence is at least in equipoise that the Veteran's bilateral hearing loss had its onset in service or is otherwise causally connected to his military service. 3. The evidence is at least in equipoise that the Veteran's tinnitus had its onset in service or is otherwise causally connected to his military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a left hand condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1972 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in October 2019, it was remanded for additional development. Specifically, the RO was instructed to obtain the Veteran's Social Security Administration records and afford the Veteran an examination regarding the etiology of his claimed left hand disability. The records were obtained, and the Veteran was provided with the relevant examination. As such, the Board finds that the AOJ substantially complied with the directives in the October 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially 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). If a chronic disease enumerated in 38 C.F.R. § 3.309(a) is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Bilateral hearing loss is an organic disease of the nervous system and thus falls within 38 C.F.R. § 3.309(a). See VA Under Secretary for Health Memorandum (Oct. 1995); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (stating "the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an '[o]rganic disease[ ] of the nervous system'".). Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA 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. The failure to meet these criteria at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service." Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Left Hand Pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Court recently held that Saunders is not limited to pain, such that a disability for VA purposes includes any condition that results in functional impairment of earning capacity. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). The Board finds that the probative evidence of record does not document that the Veteran has a current diagnosis of any left hand or wrist disability. Further any symptoms experienced do not rise to compensable levels or result in impairment of function capacity. As such, service connection is not warranted on direct or presumptive bases for the claimed disabilities. Martinez-Bodon, supra. The Board has thoroughly reviewed the Veteran's medical records. The Veteran's service treatment records (STRs) contain a September 1974 treatment record and x-rays regarding the Veteran's left hand/wrist. It is noted the Veteran injured his left hand and there was a provisional diagnosis of a distal radicular fracture. However, in October 1974 after the x-rays had been reviewed it was noted that the x-rays were negative, there was no fracture, and the Veteran was diagnosed with left wrist sprain. There was no further treatment or complaints of left wrist or hand conditions while in service. The Veteran submitted private treatment records which indicated he was being treated for pain and weakness in his left wrist. Specifically, the Board notes a November 2017 treatment record indicating that the Veteran wore a brace on his left hand and wrist at night for a week due to pain, and an August 2018 treatment record which noted the Veteran had a 6+ year history of pain, parasthesia, and numbness in his left wrist. In response to the October 2019 Board remand the Veteran was provided with a March 2020 Acceptable Clinical Evidence (ACE) review regarding his left hand condition. This examiner indicated that the Veteran was diagnosed with a left distal radius fracture in service, and noted that his current wrist condition was likely due to his in service wrist fracture. However, the examiner's opinion was based on an inaccurate reading of the Veteran's STRs. The Board notes that the Veteran was not diagnosed with a fracture in-service, and as noted above, his in-service x-rays were negative. As this opinion was based on inaccurate facts and medical history, the Board affords it no weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The RO then provided the Veteran with a January 2021 VA Hand and Fingers examination. After a review of the Veteran's medical records and an in-person examination, the examiner opined that there is no diagnosis for the Veteran's claimed left-hand condition; because there were no findings, signs, or symptoms to support a diagnosis. The examiner noted that the Veteran was engaged in a fight with another military personnel in 1974 and had a documented injury to left wrist. Further, the Veteran was seen by medical and orthopedics and was diagnosed with left wrist sprain when his x-rays were negative. The examiner noted that the record is silent for any left hand injury and that the Veteran stated he had no follow up left hand pain while in the military. The examiner noted that the Veteran currently had mild limitation of range of motion of fingers, however, the examiner opined that this is more than likely a sequela of normal aging. There was no pain of the hand with palpation. Therefore, the examiner opined, a left hand injury is less likely than not (less than a 50 percent probability) incurred in the Veteran's service. The examiner further noted that the Veteran does complain of subjective intermittent pain in left hand causing him to wear a wrist/hand support brace. The examiner continued that the Veteran served as a police officer post military requiring some repetitive use of his hands and wrist. Additionally, the examiner noted that the Veteran's left hand grip was normal and did not experience pain on palpitation. Therefore the examiner opined that the Veteran's left hand pain does not reach the level of functional impairment of earning capacity and is less likely than not (less than a 50 percent probability) that any left hand pain reaches the level of functional impairment of earning capacity. In support of his rationale, the examiner cited to relevant medical literature. Based on the above, the Board does not find evidence of any left hand disability at any time during the pendency of the appeal. Additionally, the Board does not find that the Veteran experiences any compensable symptoms, or functional impairment, thereof. The Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran asserts that his claimed condition is related to his active service, such statements are of no probative value, as the Veteran lacks the medical expertise to diagnose complex conditions or to render medical nexus opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, to the extent the Veteran asserts that he has a current condition, such statements are inconsistent with the medical evidence of record that does not document any relevant diagnoses at any time during the pendency of the appeal. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Martinez-Bodon, supra. Based on the foregoing, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for a left hand disability. As the preponderance of the evidence is against the Veteran's claims for service connection, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Hearing Loss and Tinnitus At the outset, the Board notes that the essential facts of the Veteran's claims for service connection for bilateral hearing loss and tinnitus are essentially identical. In addition, the resolution of these claims involves the application of identical law to similar facts. As such, in the interest of judicial economy these issues will be addressed together. The Veteran contends that he has experienced bilateral hearing loss and tinnitus which are etiologically related to his active duty service. The medical evidence demonstrates that the Veteran has current diagnoses of bilateral hearing loss and tinnitus as defined by the VA. See March 2019 VA Hearing loss and Tinnitus examination report. In addition, the VA concedes the Veteran's reported military noise exposure. However, the Veteran's STRs do not indicate any complaints or treatment for hearing loss or tinnitus while in service. During his February 2017 Board hearing, the Veteran testified that he was exposed to hazardous noise without ear protection. Specifically, the Veteran testified that he was part of the Infantry, was in a tank, had a flashbang grenade explode near his feet, fired .50 caliber machine guns, and fired M60 machine guns, all without hearing protection. Further, the Veteran testified that he first noticed a decline in his hearing after the flashbang grenade went off near him and has experienced ringing in his ears and a decrease in his hearing ever since. The Veteran is competent to report that he had hearing problems, and ringing in his ears, during and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran submitted private treatment records from Manatee Hearing and Speech Center which related his bilateral hearing loss and tinnitus to his history of military noise exposure. The Veteran further submitted a private March 2018 medical opinion which noted the Veteran's hearing loss and tinnitus is etiologically related to his in-service noise exposure. The Veteran was provided with a March 2019 VA Hearing Loss and Tinnitus examination. The examiner found that the Veteran has current diagnoses of bilateral hearing loss and tinnitus for VA purposes. Further, the examiner noted that the Veteran had a history of hazardous noise exposure which was mostly unprotected during his active duty service and perceived the onset of his hearing loss in the 1970s. However, the examiner opined that the Veteran's bilateral hearing loss and tinnitus conditions were less likely than not (less than a 50 percent probability) etiologically related to his active duty service. The rationale provided was that there were no significant in-service threshold shifts and the Veteran's STRs were silent for hearing loss and tinnitus complaints. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The VA examiner's opinion was based on the lack of evidence of treatment in the Veteran's medical records and a lack of significant in-service threshold shifts. However, the Board notes, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. The medical opinion was based on a lack of treatment records regarding the Veteran's hearing loss which did not address the Veteran's competent lay statements and is therefore of limited probative weight. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The Board has considered the Veteran's lay statements in support of his claim. He is competent to report that he had hearing problems and tinnitus during and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case the Veteran reported that he started experiencing trouble hearing and tinnitus during his exposure to loud noises while he was in active duty service and that it has continued into present day. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. Additionally, the Veteran's lay statements are supported by his private treatment records which related his hearing loss and tinnitus to his military noise exposure. The Board finds that the totality of the evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss and tinnitus are etiologically related to his in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the Veteran's bilateral hearing loss and tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.