Citation Nr: 21039680 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-34 721 DATE: July 1, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for degenerative changes right knee claimed as knee condition is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has or has had at any time during the appeal period, a diagnosis of right ear hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112; 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 December 2007 to July 2014. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Board remanded the claim for service connection for right ear hearing loss for an updated VA examination (VAX) and the claim for service connection for degenerative changes right knee for an addendum opinion. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). 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. See 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For certain chronic disorders shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 C.F.R. § 3.303 (b). When the fact of chronicity in service is not adequately supported, presumed service connection may be established by a showing of continuity of symptomatology after discharge. See 38 C.F.R. § 3.303 (b). Sensorineural hearing loss, being an "organic disease of the nervous system," is among the chronic diseases listed under 38 C.F.R. § 3.309 (a), for which a presumption of service connection may apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hearing loss will be considered to be a disability for VA purposes 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. See 38 C.F.R. § 3.385. Normal hearing is defined by auditory thresholds from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board must consider all lay (non-expert) and medical evidence in evaluating a claim. See 38 U.S.C. § 1154 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; see also Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran contends that he has right ear hearing loss due to active duty service. Three VAXs have been conducted over the course of the appeal period. As shown below, each of those examinations failed to show the Veteran has right ear hearing loss disability for VA purposes. February 2021 500 Hz 1000Hz 2000Hz 3000 Hz 4000Hz Speech Discrimination Scores Right Ear 20 15 15 15 20 100% May 2018 500 Hz 1000Hz 2000Hz 3000 Hz 4000Hz Speech Discrimination Scores Right Ear 5 5 10 10 5 94% December 2016 500 Hz 1000Hz 2000Hz 3000 Hz 4000Hz Speech Discrimination Scores Right Ear 10 10 5 5 10 100% Consideration has been given to the Veteran's own statements of right ear hearing loss. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, sensorineural hearing loss falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Hearing loss (for VA purposes) is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that a audiometric testing and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In short, there is no competent medical evidence showing that the Veteran meets the criteria for a diagnosis of right ear hearing loss for VA purposes at any time during this appeal or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection for right ear hearing loss must be denied on this basis. REASONS FOR REMAND Entitlement to service connection for degenerative changes right knee claimed as knee condition is remanded. The purpose of the September 2020 Board remand was to obtain an addendum opinion. Specifically, the examiner was asked to determine whether the Veteran's right knee disability is at least as likely as not related to any in-service physical activities, knee injuries, or knee pain. The examiner was directed to take as fact the Veteran has a current right knee disability identified as moderate narrowing of both compartments, consistent with degenerative changes. The requested addendum opinion was provided in March 2021. Notably, in providing a negative opinion, the examiner cited to the lack of evidence of a current right knee disability. The examiner made reference to the Board's directive of the Veteran having moderate narrowing of both compartments but focused on the absence of current objective evidence of a knee disability as well as his failure to appear for a diagnostic appointment. No effort was made to reconcile the earlier findings noted by the Board. It is also not clear to Board that the Veteran failed to report for the diagnostic testing. Indeed, given the Veteran consistent history of attending his scheduled examinations, his failure to appear for the diagnostic test but appear for a contemporaneous interview/examination seems unusual. For these reasons, the Board finds that the AOJ failed to substantially comply with the September 2020 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Another remand is warranted. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of any right knee disability. After a review of the claims, interview, and physical examination, to include any diagnostic testing, the examiner should address the following: a. Identify/diagnose any chronic disability of the right knee that presently exists or that has existed during the appeal period. In the event that the criteria for a diagnosis of a right knee disorder are not met, it is noted that pain resulting in functional impairment may constitute a disability for service-connection purposes. So, the examiner is to specifically state whether there is any functional impairment associated with the Veteran's complaints of pain. The "Functional Impact" section of the report of examination should be completed. If there is not functional impairment, explain why. The examiner must reconcile her/his negative finding with earlier records indicating the Veteran has a right knee disability identified as moderate narrowing of both compartments, consistent with degenerative changes. b. For any diagnosed disability or functional impairment of the right, state whether it is at least as likely as not related to any in-service physical activities, knee injuries, or knee pain. The examiner should address the Veteran's lay contentions regarding the onset and chronicity of his right knee condition, including as set forth in the letter written by his representative and received May 7, 2020. In responding to the above, the examiner is requested to address whether is there any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current right knee arthritis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed arthritis is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.