Citation Nr: 21040018 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-30 694 DATE: July 2, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for hearing loss, left ear is denied. Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to service connection for Reiter's Syndrome is denied. FINDINGS OF FACT 1. Audiometric examinations corresponded to a level VI hearing loss for the left ear. 2. A right ear hearing loss disability was not manifest during active service and an organic disease of the nervous system (sensorineural loss) was not manifest within one year of separation. Right ear hearing loss disability is unrelated to service. 3. Reiter's Syndrome was not manifest during service and arthritis was not manifest within one year of separation. Reiter's Syndrome is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for hearing loss, left ear have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. A right ear hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. 3. Reiter's Syndrome was not incurred in or aggravated by active service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to December 1967. These matters were previously remanded by the Board in June 2020 for evidentiary development. 1. Entitlement to an evaluation in excess of 10 percent for hearing loss, left ear Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the current uniform 10 percent evaluation is appropriate for the entire period on appeal. The Veteran is in receipt of a 10 percent evaluation for a left ear hearing loss disability. The Veteran filed an increased rating claim on July 12, 2013. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. See 38 C.F.R. § 4.85 (a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular evaluations are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b). As the Veteran is only service connected for a left ear hearing loss disability, 38 C.F.R. § 4.85 (f) is of particular importance. Section 4.85(f) instructs that in evaluating the level of disability under Table VII when only one ear is service-connected, the non-service-connected ear will be assigned a Roman Numeral designation of I. At an April 2014 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg LEFT 30 55 85 95 66 72% Applying 38 C.F.R. § 4.85 (f) and 38 C.F.R. § 4.85, Table VI and Table VII, to the above audiological findings, the Veteran has a numeric designation of VI for his left ear and I for his right. Application of 38 C.F.R. § 4.85, Table VII, results in a 0 percent disability evaluation. These are the only audiological findings during the period on appeal. There is, however, a March 2013 Comprehensive Hearing Evaluation in VA treatment records within one year of the increased rating claim. Pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg LEFT 30 50 85 95 65 80% Applying 38 C.F.R. § 4.85 (f) and 38 C.F.R. § 4.85, Table VI and Table VII, to the above audiological findings, the Veteran has a numeric designation of IV for his left ear and I for his right. Application of 38 C.F.R. § 4.85, Table VII, results in a 0 percent disability evaluation. The Board has reviewed VA and private treatment records. There is no objective medical evidence inconsistent with the findings of the VA examination and treatment record reported above. The preponderance of the evidence is against an evaluation in excess of 10 percent for a left ear hearing loss disability at any point during the period on appeal. The evidence of record does not more nearly reflect the criteria for a higher evaluation. 38 C.F.R. § 4.7. To the extent that the Veteran reports that his hearing acuity is worse than evaluated, the Board has considered his statements. This evidence is competent. However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or puretone decibel reading to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann, supra. The claim must be denied. Service Connection 2. Entitlement to service connection for a right ear hearing loss disability The Veteran contends that he has a bilateral hearing loss disability due to noise exposure during active service. He is currently only service-connected for a left ear hearing loss disability (as explained above). VA has previously determined that the Veteran was exposed to hazardous noise during service. Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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 -the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). VA examination confirms a right ear hearing loss disability. Sensorineural hearing loss is considered an organic disease of the nervous system, which is identified as a "chronic disease" under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). "For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 C.F.R. § 3.303 (b). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. 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, 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. Specific to the right ear, service treatment records document an August 1965 complaint of right ear pain. It was assessed as external otitis. The Veteran had an in-service audiological evaluation upon enlistment in October 1963, upon examination in July 1964, and upon separation in November 1967, during which auditory thresholds were recorded. It is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. It is VA policy to assume that prior to January 1, 1967, the ASA standard was used. Between January 1, 1967, and December 31, 1970, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 500 1000 2000 3000 4000 add 15 10 10 10 5 There are two testing results upon enlistment. Using the conversion, audiological testing for the right ear upon enlistment in October 1963 was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 N/A 10 RIGHT 15 10 10 10 10 Using the conversion, audiological testing for the right ear upon testing in July 1964 was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 N/A 20 Prior to conversion, audiological testing for the right ear upon separation in November 1967 was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 25 Using the conversion, audiological testing for the right ear upon separation in November 1967 was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 20 30 At a May 1985 VA examination, audiological testing was as follows: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 5 10 5 15 30 96% As such, there was not a right ear hearing loss disability in accordance with 38 C.F.R. § 3.385 in May 1985. At a March 1993 VA examination, audiological testing was as follows: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 20 15 5 40 60 84% This is the first objective evidence of a right ear hearing loss disability in accordance with 38 C.F.R. § 3.385. Pursuant to the Board's June 2020 Remand, a September 2020 VA medical opinion was issued regarding the etiology of the Veteran's right ear hearing loss disability. The VA examiner concluded that the Veteran's right ear hearing loss disability was less likely than not related to his service, to include in-service noise exposure. The examiner cites service treatment records, noting a "slight shift in hearing in his right ear." In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the September 2020 VA medical opinion that the Veteran's right ear hearing loss disability is not related to his active service as highly probative medical evidence on this point. The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds this medical opinion to be highly probative as it is adequately supported by additional rationale. The Board notes a March 2006 statement from a private physician. The physician states: "As far as I am concerned, this [hearing loss] and his Reiter's syndrome are results of his service and loyalty to this country." The physician provides no medical rationale or further explanation. Accordingly, it is of minimal probative value. The Board has considered the lay statements of the Veteran. The Veteran is competent to provide evidence of what he experiences. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner's opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner's medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of right ear hearing loss disability during active service or within one year of separation. The Veteran separated from active service in December 1967. Right ear hearing loss was not noted during service. The ears were normal upon separation. The Veteran did not have characteristic manifestations sufficient to identify the disease entity. 38 C.F.R. § 3.303 (b). Objective medical testing did not document a right ear hearing loss disability for many years after separation, until March 1993. Here, there is no competent evidence of right ear hearing loss or hearing loss disability during service or within one year of separation. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a right ear hearing loss disability. The claim must be denied. 3. Entitlement to service connection for Reiter's Syndrome The Veteran asserts that his Reiter's Syndrome is directly related to service. Reiter's Syndrome is a form of arthritis. Arthritis is identified as a "chronic disease" under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). Service treatment records document treatment for left hip pain, groin pain, and lumbar strain. There are no other relevant symptoms, complaints, treatment, diagnoses, or other notations. Clinical evaluation at the November 1967 separation examination revealed normal spine, extremities, and musculoskeletal system. All other systems were normal as well. The Veteran submitted February 2014 and July 2014 statements from a private physician regarding the etiology of his Reiter's Syndrome. In the February 2014 statement, the examiner notes that potential symptoms of Reiter's are joint pain and chronic digestive and bowel irritability. She also indicates that food poisoning due to salmonella, shigella, Yersinia, or campylobacter infection may cause Reiter's. She reports that the Veteran had bouts of diarrhea while in Vietnam and that it may be a preliminary symptom of the Veteran's Reiter's. "While most people recover from the initial flare of symptoms, a small percentage will have deforming arthritis and severe symptoms. [The Veteran] is on of the unfortunate few." The July 2014 statement reiterates the February 2014 opinion. The June 2020 Board Remand addressed the inadequacy of these private medical opinions due to the lack of a "clear nexus between the Veteran's service and Reiter's syndrome." The Board also notes that service treatment records make no reference to diarrhea or other intestinal/digestive issues. As such, the private medical opinions appear to be entirely based upon the Veteran's report of in-service symptoms. While the Veteran is competent to report in-service diarrhea or other symptoms, the Board finds the contemporaneous medical evidence to be more probative in finding that the Veteran did not have "bouts of diarrhea" or an infection or other condition causing digestive/intestinal symptoms in service. To the extent that he suffered digestive issues, the evidence shows that they were acute and transitory and did not result in a chronic condition. Clinical evaluation upon separation was normal. Pursuant to the Board's Remand, a VA medical opinion was obtained. Multiple addendum opinions were issued. However, the most recent April 2021 addendum opinion makes clear that prior opinions issued in December 2020 and February 2021 were "selected in error and need to be disregarded." The December 2020 and February 2021 opinions also inaccurately indicated that the Veteran received treatment for a sexually transmitted disease in service, which is not documented in treatment records. As a result, the Board will only address the April 2021 addendum opinion, as the other VA opinions were based on an inaccurate factual premise and issued erroneously. The April 2021 opinion concluded that the Veteran's Reiter's Syndrome was less likely than not related to active service, to include any potential symptoms of pain and diarrhea while in service. Citing the private medical opinion, the examiner notes Reiter's Syndrome, or "reactive arthritis," may be caused by some infections most often caused by sexual contact from the bacterium Chlamydia trachomatis and sometimes bowel infection by salmonella. The examiner notes that the Veteran's service treatment records do not document chlamydia or salmonella. The examiner notes that relevant symptoms are joint pain, inflammation, urinary tract symptoms, and eye infection (conjunctivitis), and a review of service treatment records does not document any such symptoms. While the Veteran did complain of urethral discharge, there was no discharge upon examination, urinalysis was negative, and the is no evidence of further evaluation or complaints for that condition. "VDRL was negative date of discharge. A diagnosis of Reiter's was suspected in 1985, 18 years post discharge." The examiner determined that there was no etiological connection between active service and the Reiter's Syndrome. In this case, the Board accepts the April 2021 VA examiner's opinion that the Veteran's Reiter's Syndrome is less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds the 2014 private opinions to be of significantly less probative value than the April 2021 VA medical opinion. As noted, the private opinions rely on a finding of an in-service infection and bouts of diarrhea, findings that are not supported by service treatment records. Conversely, the April 2021 VA examiner addressed the service treatment records, the Veteran's reports of in-service diarrhea, the private medical opinions, and other relevant evidence. The Board has also considered the general lay assertions of record. To the degree that the Veteran has reported a continuity of symptoms since service, he is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Of note, the Veteran has not indicated that a medical professional provided him with a diagnosis during service or immediately thereafter. Id. The Veteran's bare lay assertions are far less probative than the opinion of the VA professional, in part due to the VA medical opinion being far more detailed and reasoned. The Board finds that the probative value of the general lay assertions is outweighed by the clinical evidence of record. In sum, there is no reliable evidence linking the Veteran's Reiter's Syndrome to service. The contemporaneous records establish that there were no documented manifestations of Reiter's Syndrome in service, the documented in-service reports of pain were acute, transitory, and unrelated to Reiter's Syndrome, relevant systems were normal upon separation, there were no manifestations of arthritis within one year of separation, and arthritis was first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than the Veteran's bare assertions. Here, chronic disease (arthritis) was not "noted" during service or within one year of separation within the meaning of section 3.303(b). While the Board notes the Veteran's documented in-service treatment for hip, groin, and back pain, as well as his reports of diarrhea, the evidence suggests that these were acute and transitory conditions that are unrelated to the Veteran's current Reiter's Syndrome. Service treatment records do not show a combination of manifestations sufficient to identify the disease entity (arthritis), and sufficient observation to establish chronicity at the time. Relevant systems were normal upon separation. Furthermore, the evidence does not establish that Reiter's Syndrome was manifest to a compensable degree within one year of separation. 38 C.F.R. §§ 3.307; 3.309. The evidence of record shows that Reiter's Syndrome was manifest many years after service and is more likely related to a post-service event. The Veteran was not shown to have Reiter's Syndrome, or any relevant medically chronic disorder in service, and did not have characteristic manifestations of such a disorder until many years after discharge. The more probative evidence establishes that he did not have a relevant disorder during service or within one year of separation. The evidence establishes that the remote onset of Reiter's Syndrome is unrelated to service. The private opinion is based upon a premise that is not credible. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.