Citation Nr: 22014147 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 99-10 908 DATE: March 11, 2022 ORDER Service connection for left ear hearing loss is denied. REMANDED The issue of an initial rating of more than 40 percent since May 14, 2001, for spondylolysis, spondylolisthesis, and lumbar spondylosis with myelopathy is remanded. The issue of an initial rating of more than 20 percent since May 14, 2001, for right lower extremity radiculopathy is remanded. The issue of an initial rating of more than 20 percent since May 14, 2001, for left lower extremity radiculopathy is remanded. FINDING OF FACT Left ear hearing loss was not caused by in-service exposure to hazardous noise and did not originate during service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from March 1973 to March 1976. In August 2020, the Board granted an initial rating of 40 percent for spondylolysis, spondylolisthesis, and lumbar spondylosis with myelopathy; an initial rating of 20 percent for right lower extremity radiculopathy; an initial rating of 20 percent for left lower extremity radiculopathy from May 14, 2001, to September 22, 2014; denied a rating of more than 20 percent since September 23, 2014, for left lower extremity radiculopathy The Board also remanded the issue of service connection for left ear hearing loss and the issue of a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). In May 2021, the Board granted TDIU and, in May 2021 and July 2021, remanded the issue of service connection for left ear hearing loss. The Veteran appealed the August 2020 decisions as to the lumbar spine and right and left lower extremity radiculopathy to the United States Court of Appeals for Veterans Claims (Court). In October 2021, the Court granted the Parties' Joint Motion for Partial Remand (JMPR); vacated those parts of the August 2020 Board decision that denied initial ratings of more than 40 percent for the lumbar spine and more than 20 percent for right and left lower extremity radiculopathy; and remanded the appeal. The Veteran has had multiple Board hearings on the issues on appeal. The undersigned Veterans Law Judge is the only judge who held a hearing who remains employed at the Board. Therefore, no panel is necessary in this case. The Veteran has been in receipt of TDIU since September 30, 2003. Entitlement to service connection for left ear hearing loss. The Board last remanded this issue in July 2021 to request that the Veteran provide authorization to obtain private treatment records and, if new records were added to the file, to obtain an updated VA medical opinion. In an August 2021 letter, VA requested authorization to obtain the private treatment records, and a copy of the necessary authorization form was sent to the Veteran and his appointed representative. No authorization was provided. In September 2021, the Veteran submitted private treatment records. An updated VA medical opinion from an otolaryngologist was obtained in December 2021. Therefore, the Board finds that the RO complied with the July 2021 remand directives. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On a February 1973 report of medical history at service entrance, the Veteran indicated that he did not have hearing loss. On his February 1973 physical examination for service entrance, he had left ear pure tone thresholds, in decibels, of 25 at 500 Hertz, 20 at 1000 Hertz, 15 at 2000 Hertz, and 30 at 4000 Hertz. No notation or diagnosis of hearing loss was made, and the Veteran scored a 1, the highest rating, on the PULHES profile for hearing. Service treatment records (STRs) do not indicate treatment for or complaints of difficulty hearing. However, service personnel records (SPRs) indicate that the Veteran worked as a wheel vehicle mechanic in service and a July 1973 STR indicates that the Veteran was enrolled in a hearing conservation program. On a January 1976 report of medical history at service separation, the Veteran indicated that he had ear, nose, or throat trouble, but indicated that he did not have hearing loss. On his January 1976 physical examination for service separation, he had left ear pure tone thresholds, in decibels, of 25 at 500 Hertz, 15 at 1000 Hertz, 15 at 2000 Hertz, and 30 at 4000 Hertz. No notation or diagnosis of hearing loss was made, and the Veteran again scored a 1, the highest rating, on the PULHES profile for hearing. At a November 1995 VA audiological evaluation, the Veteran left ear pure tone thresholds, in decibels, of 0 at 500 Hertz, 5 at 1000 Hertz, 0 at 2000 Hertz, 30 at 3000 Hertz, and 40 at 4000 Hertz. This indicates left ear hearing loss under 38 C.F.R. § 3.385. A September 2001 VA treatment record states that the Veteran did not have any hearing problems. A July 2009 private treatment record states a diagnosis of chronic rhinitis. An October 2009 private treatment record indicates that the Veteran had left ear pressure and hearing loss which began two weeks prior and states a working diagnosis of Eustachian tube dysfunction and acute nasopharyngitis. An October 2009 VA treatment record states that the Veteran reported a sore throat, "clogged" ears, and sinus problems. A December 2009 VA treatment record states that the Veteran had complaints of very loud left ear ringing, impaired balance, and dizziness. A December 2009 private treatment record indicates that the Veteran had a nasopharyngoscopy and the nasopharynx was found to be clear. He also had an ear tube inserted at that time. A January 2010 VA treatment record states that the Veteran reported left ear hearing loss. A March 2010 VA audiogram indicated moderate mixed hearing loss through 500 Hertz, normal hearing at 1000 and 2000 Hertz, mild hearing loss at 3000 Hertz, and moderate mixed hearing loss at 4000 Hertz. He reported that he had a tube placed in his left ear, and that he had unilateral tinnitus, occasional dizziness, an "echo," and a feeling of "pressure" in the left ear. A March 2012 VA audiological treatment record states that the Veteran had decreased hearing acuity, dizziness, and tinnitus with fluctuating intensity. An audiogram was performed, and the Veteran was diagnosed with moderately severe sensorineural hearing loss across all frequencies. A July 2012 VA treatment record states that the Veteran reported "roaring static" in the left ear, and fluctuating hearing loss. An August 2012 private treatment record indicates treatment for tinnitus and sensorineural hearing loss. In July 2014, the Veteran was afforded a VA examination. He was diagnosed with sensorineural hearing loss in the frequency range of 500 to 4000 Hertz. The Veteran reported feeling as if there was fluid in his ear and that sounds were muffled. He reported post-service occupational noise exposure while working as a mechanic intermittently from 1976 to 2003, during which time he had exposure to engine and machinery noise. He also had recreational noise exposure from automobiles. The medical opinion was inadequate because it inaccurately stated that hearing loss existed prior to service; it is of no probative value. An August 2016 private audiogram states that the Veteran had decreased hearing in the left ear for the prior six years, that he had dizziness, and that he had moderate to severe sensorineural hearing loss. An August 2016 private treatment record from an ear, nose, and throat physician states that the Veteran had dizziness and intermittent left ear hearing loss. The Veteran indicated that it may have been related to his sinus problem. He was diagnosed with left ear sensorineural hearing loss, abnormal auditory perception in both ears, and Meniere's disease. In a May 2019 statement, the Veteran reported hearing loss, tinnitus, dizziness, and vertigo. He stated that he worked in the motor pool in service and was exposed to constant noise. In August 2019, the Veteran was afforded another VA examination. He was again diagnosed with left ear sensorineural hearing loss in the frequency range of 500 to 4000 Hertz. The examiner noted in-service noise exposure from electric typewriters and diesel vehicles; post-service occupational noise exposure from 20 years working as a mechanic; no recreational noise exposure; and a history of ear disease, including sinus problems, dizziness, and balance problems. The medical opinion was inadequate because it again inaccurately stated that hearing loss existed prior to service; it is of no probative value. An August 2019 VA treatment record states that the Veteran reported a history of chronic dizziness and balance problems; that he could sleep only on his right side because his left side caused dizziness; dizziness with quick head movements to the left; and that he took medication for dizziness. VA prescribed a hearing aid for the left ear. A September 2019 VA treatment record states that the Veteran had a history of vertigo associated with aural fullness, loud tinnitus, and fluctuating hearing loss in the left ear; that his symptoms were exacerbated by nasal congestion; and he reported that hearing loss occurs during episodes of dizziness. In a May 2020 VA treatment record, a neurologist stated that dizziness and vertigo were episodic, associated with congestion, and helped by antihistamines and decongestants. The neurologist indicated that hearing loss was associated with the dizziness and vertigo, and had a peripheral etiology, rather than a vascular or central nervous system etiology. Another May 2020 VA treatment record states that the Veteran reported that his left ear symptoms had been present for approximately 10 years. He reported intermittent dizziness caused by congestion due to allergies. During dizziness spells, he also had tinnitus, muffled hearing, and a sensation of fullness in the left ear. Medication, including allergy medication, helped his symptoms. In February 2021, the Veteran was afforded another VA examination. He was again diagnosed with left ear sensorineural hearing loss. The Veteran reported in-service noise exposure from motor pool operations, generators, air tools, and office equipment. He reported no post-service noise exposure. The medical opinion was inadequate because it again inaccurately stated that hearing loss existed prior to service; it is of no probative value. An April 2021 VA audiology opinion was also inadequate and of no probative value to the extent that it stated that hearing loss preexisted service. The opinion also stated that there was no threshold shift in hearing while in service because audiometric testing was identical between the February 1973 physical examination for service entrance and the January 1976 physical examination for service separation except that the pure tone threshold at 1000 Hertz improved from 20 decibels to 15 decibels. In July 2021, a VA otolaryngologist reviewed the Veteran's entire file and concluded that left ear hearing loss was not caused by service. The clinician noted that hearing loss was nearly identical at service entrance and separation, other than the slight improvement at 1000 Hertz. He stated that when there has been acoustic trauma that causes hearing loss, there will be a 15 decibel or greater shift in hearing, and that a 10 decibel or less change is normal variability between tests and not indicative of hearing loss. The clinician concluded that there had, therefore, been no threshold shift in hearing while in service. He also stated that if military noise had caused hearing loss, it would have manifested near the time of the noise. He incorrectly stated that the November 1995 audiometric test indicated no hearing loss. A December 2021 addendum opinion reiterated that hearing loss did not occur for many years after service separation and was, therefore, not caused by service. This opinion considered 2009, 2012, and 2016 private treatment records submitted by the Veteran in September 2021. The Veteran has left ear hearing loss that meets the requirements for a current disability under 38 C.F.R. § 3.385. The Board also finds that the Veteran had in service exposure to hazardous noise. For the reasons discussed below, the Board finds that the Veteran's left ear sensorineural hearing loss was not caused by, and did not originate in, service. The Veteran did not have left ear hearing loss in service and, therefore, the disorder did not originate in service. His January 1976 physical examination for service separation indicated only that his hearing had slightly improved at 1000 Hertz from the February 1973 physical examination for service entrance. The July 2021 VA otolaryngology opinion stated that a change of less than 10 Hertz was normal inter test variability and not indicative of a hearing change. In this case, the evidence either indicated no change or a slight improvement. There was not, however, any worsening of hearing while in service and the disorder did not originate at that time. The evidence indicates that left ear hearing loss originated after service. Service connection may still be granted if the disorder was caused by in-service noise exposure. See 38 C.F.R. § 3.303(d). The July 2021 VA otolaryngology opinion stated that hearing loss caused by exposure to hazardous noise in service would manifest near the time of the noise exposure. The first post service indication of hearing loss, however, was the November 1995 audiometric test. There is no indication that the Veteran had any complaints of hearing loss before that time, or that he sought treatment for hearing complaints between service separation and November 1995. Additionally, a September 2001 VA treatment record states that the Veteran did not have difficulty hearing. The Veteran first began seeking regular treatment for hearing difficulty in 2009. In October 2009, he reported that his ear symptoms and hearing loss first began two weeks prior; in August 2016, he stated that he had decreased hearing beginning approximately six years early; in May 2020, he reported that his symptoms began approximately 10 years earlier. He has also reported, and VA and private clinicians have reported, that his left ear hearing loss is intermittent and occurs with sinus symptoms, including allergies and congestion. There is no competent medical provider who has concluded that the Veteran's left ear hearing loss was caused by in-service noise exposure, or that it originated during service. The VA otolaryngologist expressly concluded that the Veteran did not have hearing loss in service and that there was at worst no change in his hearing from service entrance to separation, and at best, that his hearing improved. The Veteran's treating ear, nose, and throat physicians have indicated that left ear hearing loss was caused by sinus symptoms. The VA otolaryngologist stated that any hearing loss due to in-service hazardous noise would manifest soon after the exposure, but there is no indication of left ear hearing loss until nearly 20 years after service separation, and the Veteran reported a timeline in 2009, 2016, and 2020 that placed the start of his symptoms around 2009 or 2010. Although the Veteran has indicated that he believes his left ear hearing loss was caused by in-service noise exposure, he is not competent to provide such an opinion. The Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). An opinion as to the etiology of hearing loss requires specialized medical knowledge, which the Veteran does not possess. Therefore, he is not competent to provide an opinion as to the cause of his left ear hearing loss. Additionally, he has repeatedly stated in the course of treatment that he believes his hearing loss may be related to sinus symptoms or dizziness, neither of which have ever been found to have been caused by or originated in service. The competent evidence of record indicates that the Veteran's left ear hearing loss was not caused by in-service noise exposure and did not originate during service. Therefore, service connection is not warranted, and the appeal is denied. REASONS FOR REMAND 1. The issue of an initial rating of more than 40 percent since May 14, 2001, for spondylolysis, spondylolisthesis, and lumbar spondylosis with myelopathy is remanded. 2. The issue of an initial rating of more than 20 percent since May 14, 2001, for right lower extremity radiculopathy is remanded. 3. The issue of an initial rating of more than 20 percent since May 14, 2001, for left lower extremity radiculopathy is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Board has no discretion and must remand this appeal for compliance with the Court's October 2021 JMPR. Remand is necessary to attempt to obtain private treatment records from Dr. Goodman; to afford the Veteran a new VA examination to determine whether his lumbar spine disorder is so severe as to cause functional ankylosis, especially during flare-ups; and to afford the Veteran a VA mental disorders examination to determine if he has depression due to his lumbar spine disorder, which would warrant a separate rating. 2. Request that the Veteran provide authorization to obtain private treatment records from Dr. Goodman. If authorization is provided, all attempts to obtain the records must be associated with the file. 3. Schedule the Veteran for a VA lumbar spine examination to obtain an opinion as to whether he currently has, or has had at any time since May 14, 2001, functional ankylosis, including during flare-ups. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address whether the Veteran currently has, or has had at any time since May 14, 2001, functional ankylosis, including during flare ups. The examiner is advised that the Veteran has reported that his low back sometimes will "freeze up" and he is unable to move, and that flare-ups caused pain up to a 10 out of 10. 4. Schedule the Veteran for a VA mental disorders examination to obtain an opinion as to whether he currently has, or has had at any time since May 14, 2001, depression due to his lumbar spine disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Whether the Veteran currently has, or has had at any time since May 14, 2001, depression caused by his low back disorder, including because of pain. (b.) Whether the Veteran currently has, or has had at any time since May 14, 2001, depression aggravated by his low back disorder, including because of pain. The examiner is advised that VA treatment records indicate that the Veteran had depression due to chronic pain. 5. Readjudicate the issues of an increased initial rating for the lumbar spine disorder and the right and left lower extremity radiculopathy. The readjudication should include an assessment of whether any other separate compensable ratings are warranted, including for depression. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.