Citation Nr: 21040233 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-04 149 DATE: July 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right thumb disability is remanded. Entitlement to service connection for a broken right wrist and residuals is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT The Veteran's bilateral hearing loss is not shown to have been present in service, to manifest within one year after discharge from service, or etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101; 1131 (West 2012); 38 C.F.R. §§ 3.303; 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1971 to November 1973. The Board notes that the Veteran appealed the issue of entitlement to service connection for a broken right pinkie finger and residuals to the Board. However, while this issue was pending, before it was certified to the Board, the RO granted service connection for a broken right pinkie finger and residuals. See October 2017 rating decision. As this decision represents a full grant of the benefits sought, the Veteran's claim for service connection for broken right pinkie finger and residuals is no longer before the Board. The Board notes that based on the evidence of record, the Board has re-characterized the Veteran's claim of entitlement to service connection for broken right thumb and residuals, more broadly as entitlement to service connection for a right thumb disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Legal Principles and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Sensorineural hearing loss is a condition that is considered chronic, and therefore, will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10 percent disabling) within one year after discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015) (specifying that sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system subject to § 3.309(a)). This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley, 5 Vet. App. 155, 159. Bilateral Hearing Loss At the onset, the Board notes that the Veteran has a current diagnosis of bilateral hearing loss. See April 2015 VA examination report for hearing loss and tinnitus. As such, the first element of service connection, a current diagnosis, is met. With respect to the second element of service connection, an in-service incurrence or aggravation of a disease or injury, the Board notes that based on the Veteran's military occupational specialty as a combat engineer, noise exposure is conceded. As such, the second element of service connection is met. Thus, the question for the Board is whether the Veteran's bilateral hearing loss began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of bilateral hearing loss, the preponderance of the evidence is against finding that this disability began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records are silent for any diagnoses of, complaints of, or treatment for hearing loss. Furthermore, in an April 2015 VA examination report the VA examiner opined that the Veteran's bilateral hearing is less likely than not related to his service. In reaching this opinion, the VA examiner noted that both the Veteran's enlistment examination report from 1971 and separation examination report from 1973 document hearing within normal limits. In other words, the VA examiner noted that these results reflect that there is no clinically significant increase in hearing audiometric thresholds over this time in service. The VA examiner also based his opinion on the Institute of Medicine's Report that hearing loss that is delayed long after noise exposure is unlikely. The landmark study stated that: There is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. See April 2015 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire. The VA examiner further explained that examination reports from service indicate that there was no clinically significant increase in thresholds over time. Thus, while reports of specific military related noise exposure and reports of continuation of difficulties with hearing since service would be considered in formulating an opinion regarding hearing loss, there is a lack of objective evidence of permanently clinically significant audiological testing. Given these factors, the VA examiner concluded that the Veteran's current hearing loss is less likely than not due to the events of active service. The Board finds that the April 2015 VA opinion is entitled to significant probative weight, as this opinion is based on a thorough medical examination, review of the entirety of the record, and relevant medical literature. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, there is no medical opinion to the contrary. Given such, the Board finds that the evidence does not support a finding that the Veteran's bilateral hearing loss is related to service. As such, the third element of service connection is not satisfied. Also, the Board has considered whether presumptive service connection is warranted for chronic diseases, which includes bilateral hearing loss. However, bilateral hearing loss is not noted in service. Thus, continuity of symptomatology is not for application. Furthermore, following his separation from service in 1973, the first treatment records noting complaints of hearing loss were not until 2015, decades later. The Board notes that the record does not reflect any indication that the Veteran had hearing loss during service or within a year of his separation. Given the extensive amount of time after service before the Veteran presented with hearing complaints is significant and the Board finds that it weighs against the Veteran's claim to establish a claim based on a presumption. See Maxson v. Gober, 230 F.3d 1330 (2000) (finding that a prolonged period without medical complaint, and the amount of time that elapsed since service can be a factor for consideration in rebutting the presumption of service connection). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the doubt doctrine is not applicable, and his claim must be denied. REASONS FOR REMAND Right Thumb Disability With respect to the Veteran's claim for a right thumb disability, the Board finds that further development is warranted. Here, an x-ray report reflects that the Veteran has severe degenerative joint disease at the right thumb carpometacarpal joint. See August 2015 Integrated Magnetic Imaging records. The Veteran's service treatment records reflect that the Veteran was seen for a swollen right hand after he struck his right hand against a wall. The Veteran is seeking service connection for a broken right thumb and/or residuals. While the evidence does not reflect any fractures to the right thumb, the Board finds that a medical examination is warranted to ascertain whether the Veteran's right thumb severe degenerative joint disease is a residual of the in-service complaints and injury to the Veteran's right thumb. Significantly, the Board finds that the Veteran has not been afforded a VA examination with respect to his right thumb claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Given such, a remand is warranted. Right Wrist, Low Back, and Hemorrhoids With respect to the Veteran's claims for a right wrist disability, low back disability, and hemorrhoids, the Board finds that further development is warranted. Here, the Veteran's service treatment records reflect complaints of low back pain, right wrist injury and swelling, and of hemorrhoids. The Veteran filed for service treatment for these disability in August 2014. Although in a February 2015 duty to assist letter, the RO requested medical evidence related to a claim for asbestos, the RO did not include a request for any information with respect to the above-mentioned claims. Furthermore, the Board notes there are no post service VA or non-VA medical records associated with the file. Thus, it is unclear whether the Veteran has any outstanding records with respect to these claims. As such, in order to comply with VA's duty to assist, a remand is warranted to give the Veteran the opportunity to provide necessary information in order for VA to attempt to obtain any such medical records. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding medical records relevant to the Veteran's claims on appeal, to include VA and non-VA medical records related to a right thumb disability, a right wrist disability, low back, and hemorrhoids. All attempts to obtain these records must be documented in the claims file. The RO should follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Upon completion of the above to the extent possible, schedule the Veteran for a VA examination, to ascertain the nature and etiology of the Veteran's right thumb disability. After performing any required tests, and reviewing the entire record, the examiner should provide an opinion responding to the following: Whether the Veteran's right thumb disability, to include severe degenerative joint disease, is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service. The VA examiner must discuss the Veteran's service treatment records which document complaints of right wrist swelling and for an injury to the right hand after striking a wall. 3. If the medical evidence reveals current diagnoses related to a right wrist disability, a low back disability, and/or hemorrhoids, schedule the Veteran for a VA examination for each of these disabilities. After performing any required tests, and reviewing the entire record, the examiner should provide an opinion responding to the following: (a) Whether the Veteran's right wrist disability, is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service. (b) Whether the Veteran's low back disability, is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service. (c) Whether the Veteran's hemorrhoids are at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service. In formulating these opinions, the VA examiner must address the Veteran's in-service complaints related to his low back pain, right wrist swelling and injury, and hemorrhoids. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.