Citation Nr: 21039909 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-55 383 DATE: July 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial compensable rating for residuals of a right hand contusion (right hand disability) is denied. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for right hand carpal tunnel syndrome is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have left ear hearing loss disability; and the preponderance of the evidence is against a finding that the Veteran's right ear hearing loss disability is etiologically related to his active service. 2. The Veteran is in receipt of the maximum schedular rating for his right hand disability under Diagnostic Code 5230. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. 2. An initial compensable rating for a right hand disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active service from May 1993 to May 1997. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 Department of Veterans Affairs (VA) rating decision that denied service connection for a cervical spine disorder, a right arm disorder, and bilateral hearing loss, and from an October 2016 rating decision that granted service connection for a right hand disability and assigned an initial noncompensable rating. In May 2020, the Board remanded the claims for further development, to include affording the Veteran new VA examinations. In November 2016 and July 2017, the Veteran requested a Board hearing. In September 2017, the Veteran requested to withdraw his request for a hearing. As such, the Veteran's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Under 38 C.F.R. § 4.85, hearing loss disability must be established by specified audiometric studies. Hearing loss disability (for VA compensation purposes) is defined in 38 C.F.R. § 3.385. Under § 3.385, a hearing loss disability is shown when audiometry in the frequencies of 500, 1000, 2000, 3000 and 4000 hertz finds a puretone threshold of 40 decibels or higher at any of those frequencies; when the puretone thresholds at 3 of the specified frequencies are higher than 25 decibels; or when speech discrimination is less than 94 percent. In this matter, the Veteran asserted that he has bilateral hearing loss due to his active service. There is no evidence in the record showing that the Veteran had hearing loss during his active duty service. His service treatment records (STRs) show that at his January 1993 entrance physical, audiometry testing showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 5 LEFT 0 5 5 5 5 At a May 1993 hearing examination, audiometry testing showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 5 LEFT 0 5 0 5 5 At an August 1994 hearing examination, audiometry testing showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 10 5 LEFT 5 0 0 5 5 In October 1994, the Veteran was provided hearing protection. At a May 1996 hearing examination, audiometry testing showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 0 5 5 LEFT 5 5 0 5 5 At the Veteran's April 1997 separation physical, audiometry testing showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -10 -5 0 0 LEFT 0 5 -5 0 0 In addition, the Veteran had a normal examination of his ears. Finally, on a questionnaire submitted in conjunction with his separation examination, he specifically denied having any hearing loss or ear trouble. The Veteran's post-service medical records do not contain any audiometry test results showing he had hearing loss in either ear. In fact, at an examination in January 2015, his hearing was noted to be normal. Audiometry on March 2011 VA examination showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 15 LEFT 0 5 5 10 10 The Veteran's speech discrimination (by Maryland CNC list) was 94 percent in the right ear and 94 percent in the left ear. Accordingly, the Veteran did not have bilateral hearing loss. The examiner reported that audiometry showed normal hearing acuity. The examiner reported that the Veteran's STRs showed normal hearing bilaterally at his entrance and separation physicals with no standard threshold shift. Audiometry on August 2020 VA examination showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 25 LEFT 5 15 0 10 25 The Veteran's speech discrimination (by Maryland CNC list) was 96 percent in the right ear and 96 percent in the left ear. Accordingly, the Veteran did not have bilateral hearing loss. The examiner opined that it was at least as likely as not that the Veteran's hearing loss was due to the Veteran's active service; however, the examiner concluded that the Veteran's hearing loss was not at a level that was considered a disability for VA purposes. Audiometry on December 2020 VA examination showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 10 25 LEFT 5 10 0 15 30 The Veteran's speech discrimination (by Maryland CNC list) was 92 percent in the right ear and 94 percent in the left ear. Accordingly, the Veteran did not have left ear hearing loss. The examiner reported that the Veteran's STRs showed that his hearing was within normal limits with no permanent significant threshold shift beyond test variability from his entrance examination in January 1993 through his separation examination in April 1997. The examiner reported that a March 2011 VA examination showed the Veteran's hearing within normal limits. The examiner reported that the Veteran had noise exposure during his active service as his military occupational specialty was aircraft maintenance administration, which had a high probability of hazardous noise exposure. The examiner reported that the relationship of noise, auditory damage, and hearing loss was well established, however, auditory damage and hearing loss were not conceded on noise exposure alone as there must be a nexus of auditory damage to relate any current hearing loss to military noise exposure and not to another etiology. The examiner concluded that the evidence of record was against a nexus in the Veteran's case, and therefore, it was less likely than not that his hearing loss was related to his military noise exposure. Regarding the Veteran's left ear, the evidence of record for consideration does not include any other official audiometry that show or suggest the Veteran has left ear hearing loss disability. The threshold matter that must be address in this matter is whether the Veteran has a hearing loss disability in his left ear. If he does not, he has not presented a valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Here, the August 2020 VA examiner found that the Veteran had speech discrimination of 96 percent in his left ear. The March 2011 and December 2020 VA examiners found that the Veteran had speech discrimination of 94 percent in his left ear, it was not less than 94 percent. Puretone threshold testing at the December 2020 VA examination found a single frequency above 25 decibels (at the 4000 hertz level) of the five frequencies in the left ear. The Veteran has not submitted any audiometry showing he has a hearing loss disability in the left ear. While he is competent to observe he perceives diminished hearing acuity, under governing regulation, he is not competent to establish he has a hearing loss disability by his own observation. As a hearing loss disability in the Veteran's left ear is not shown, he has not met the threshold legal requirement for substantiating a claim of service connection for such disability. Regarding the Veteran's right ear, it is not in dispute that he now has a right ear hearing loss disability (as defined in 38 C.F.R. § 3.385), as such disability was found on VA examination in December 2020, but not on previous March 2011 and August 2020 VA examinations. What remains for consideration is whether or not the current right ear hearing loss is etiologically related to his service, which is a medical question. The evidence shows that the Veteran did not have a right ear hearing loss disability in service, and that right ear hearing loss was not manifested to a compensable degree within a year following his discharge from service. Accordingly, service connection for the current right ear hearing loss on the basis that such manifested in service and persisted is not warranted. Furthermore, as right ear hearing loss was not shown to have been manifested in service or in the first post-service year, the chronic disease presumptive provisions of 38 U.S.C. §§ 1112, 1137 and 38 C.F.R. §§ 3.307, 3.309 do not apply. The Board has also considered whether service connection for right ear hearing loss based on continuity of symptomatology is warranted, but continuity of symptomatology was not demonstrated by the evidence in the record. The first evidence of right ear hearing loss in the record is not until the audiometry testing at the December 2020 VA examination. Previously, the Veteran's hearing was found to be normal at the March 2011 VA examination, at a January 2015 treatment visit, and at the August 2020 VA examination. Therefore, the Board finds that service connection for right ear hearing loss based on continuity of symptomatology is not warranted. The preponderance of the evidence is also against a finding that the Veteran's current right ear hearing loss may otherwise be etiologically related to his service. Regarding the dispositive factor of a nexus between the current right ear hearing loss and service/exposure to noise therein, the Board finds the December 2020 VA examiner's opinion most probative. The examiner's opinion reflected close review of the Veteran's claims file and includes rationale that cited to accurate factual data and medical literature. While the August 2020 VA examiner opined that it was at least as likely as not that the Veteran's hearing loss was due to the Veteran's active service, the examiner also found that the Veteran's hearing loss was not at a level that was considered a disability for VA purposes. The December 2020 VA examiner opined that the Veteran's hearing loss was less likely than not related to his active service, to include any military noise exposure. The examiner's opinion is consistent with the Veteran's STRs, which did not show any hearing loss or ear trouble during his active service. The examiner's opinion is also consistent with the Veteran's post-service treatment records, which do not show hearing loss for VA purposes in March 2011, January 2015, and August 2020. Accordingly, greater weight is given to the opinion of the December 2020 VA examiner. Furthermore, while the Veteran may have been exposed to military noise such as aircraft noise, any military noise exposure is not at issue. For service connection to be warranted it must be shown that such military noise exposure actually caused a hearing loss disability for VA purposes, which has not been shown. The Veteran has not submitted any competent medical evidence showing that his right ear hearing loss was due to his active service. While he is competent to observe he perceives diminished hearing acuity, under governing regulation, he is not competent to establish the etiology of his right ear hearing loss as this is a medical question that is beyond the scope of common knowledge, and requires medical expertise. Here, the medical evidence in the record that directly addresses that question and is given the greatest probative weight is the opinion of the December 2020 VA examiner (against the claim). The opinion reflects familiarity with the accurate factual record and the opinion is based on information elicited directly from the Veteran and cites to supporting clinical data and medical principles. The examiner opined that the Veteran's right ear hearing loss was less likely than not due to his active service, to include any military noise exposure. The preponderance of the evidence is against a finding that the Veteran's current right ear hearing loss is etiologically related to his service, to include any military noise exposure. Accordingly, the preponderance of the evidence is against the Veteran's service connection claim for bilateral hearing loss. Therefore, the appeal in the matter must be denied. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran asserted he was entitled to a higher rating for his right hand disability. The Veteran's right hand disability is evaluated under Diagnostic Code 5230. A noncompensable rating, the maximum rating available, is assigned for any limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5230. The Veteran's treatment records show he had normal finger movements at physical examinations in January 2012, February 2017, May 2017, September 2017, February 2018, March 2019, September 2019, and January 2020. The March 2011, September 2016, and December 2020 VA examiners indicated that the Veteran did not have any ankylosis of the right hand, he retained normal range of motion, and he had no gap between the pad of the thumb and the fingers. The September 2016 and December 2020 VA examiners indicated that the Veteran did not have additional contributing factors of disability. Finally, the Veteran denied having flare-ups at the March 2011, September 2016, and December 2020 VA examinations. The Board has considered other Diagnostic Codes, but no other Diagnostic Code would result in a more favorable rating. Accordingly, the preponderance of the evidence is against the Veteran's increased rating claim for a right hand disability. Therefore, the appeal in the matter must be denied. REASONS FOR REMAND Regarding the claim of service connection for a cervical spine disorder, the Board remanded this matter in May 2020 for an addendum opinion in order to ascertain the nature and likely etiology of any diagnosed cervical spine disorder. The examiner was to review the record and offer an opinion as to whether it was at least as likely as not that any cervical spine disorder was related to the Veteran's active service. On December 2020 VA examination, the examiner opined that the Veteran's cervical spine disorder was less likely than not due to his active service. The examiner reported that there was no chronic cervical spine disorder and the Veteran's symptoms were subjective only. However, under the diagnosis section, the examiner reported that the Veteran was diagnosed with cervical spine arthritis and herniated discs. The Veteran's STRs show that he strained his neck in November 1996; however, a cervical spine x-ray showed no fracture. At his April 1997 separation examination, he reported a neck injury during his active service. His medical records show that in March 2011, he reported that his neck pain began in service. A March 2011 cervical spine MRI showed mild disc narrowing, minimal disc bulging, osteophyte formation at C6-7, and foraminal encroachment. A March 2011 cervical spine x-ray showed minimal narrowing of the disc space at C5-6 and mild arthritic changes. Considering the foregoing, the opinion by the December 2020 VA provider was internally inconsistent, did not consider the objective medical evidence, and did not consider the Veteran's lay statements regarding etiology, and as such, is inadequate for rating purposes. Accordingly, development for an addendum opinion is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter of entitlement to right hand carpal tunnel syndrome is inextricably intertwined with the matter of entitlement to a cervical spine disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, this claim must also be remanded. The matters are REMANDED for the following: 1. Secure for the record complete updated to the present (all outstanding) medical records of evaluations and treatment the Veteran has received. 2. Then, arrange for the Veteran's record to be forwarded to an appropriate clinician (in orthopedics) for review and a clarifying addendum opinion. [If further examination is deemed necessary for an opinion sought, such should be arranged.] The consulting provider should respond to the following: a. Identify (by diagnosis) each cervical spine disorder shown. b. Identify the likely etiology for each cervical spine disorder diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that the disability began in (or is otherwise related to) the Veteran's active service. The examiner should discuss the Veteran's STRs showing treatment for neck complaints, the objective medical evidence showing a cervical spine disorder, the findings of the previous VA examiners, and the Veteran's lay statements regarding the etiology of his cervical spine disorder. All opinions must include explanation of rationale, with citation to supporting factual data/medical principles. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.