Citation Nr: A25041284 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240724-462096 DATE: May 6, 2025 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran has had bilateral hearing loss for VA compensation purposes at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §§?3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1984 to July 1986. A rating decision addressing the issue of entitlement to service connection for bilateral hearing loss was issued in January 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. A subsequent rating decision addressing the issues of entitlement to service connection for a neck disability, a back disability, bilateral ankle disabilities, and bilateral foot disabilities was issued in February 2024 and constitutes an initial decision; therefore, the AMA applies. In March 2024, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issues addressed in the January 2024 and February 2024 rating decisions. In March 2024 the AOJ notified the Veteran that his VA Form 20-0995 could not be accepted because the form was incomplete. In April 2024 the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of his claim of entitlement to service connection for bilateral foot disabilities that was addressed in the February 2024 decision. In July 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior decisions. Therefore, the Board may only consider the evidence of record at the time of the January 2024 (hearing loss) and February 2024 decisions. In a July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, for the issue of entitlement to service connection for bilateral hearing loss, the Board may only consider the evidence of record at the time of the January 2024 rating decision, while for the claims of entitlement to service connection for a neck disability, a back disability, and bilateral ankle disabilities, the Board may only consider the evidence of record at the time of the February 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of entitlement to service connection for a neck disability, a back disability, and bilateral ankle disabilities, and bilateral foot disabilities, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Regarding the claim of entitlement to service connection for bilateral foot disabilities, the Board may only consider the evidence of record at the time of the February 2024 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims of entitlement to service connection for bilateral foot disabilities, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that he has a current diagnosis of bilateral hearing loss that is related to his period of active-duty service.? The question for the Board is whether he has a disability due to impaired hearing that began during service or is at least as likely as not related to an in-service injury, event, or disease.???? 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?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 v. Brown,?5?Vet. App.?155, 159?(1993). Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz (Hz) is 40 decibels or greater; or the threshold for at least three of these frequencies 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.???? The Board concludes that the Veteran does not have a current diagnosis of hearing loss for the purposes of VA disability compensation and has not had one at any time during the pendency of the claim or recent to the filing of the claim.? 38?U.S.C. §§?1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26?Vet. App.?289, 294 (2013); McClain v. Nicholson, 21?Vet. App.?319, 321 (2007); 38?C.F.R. §?3.303(a), (d).???? In this regard, the Veteran's hearing acuity was tested during a September 2023 VA audiology examination.? (9/16/2023, C&P Exam, p. 2). His speech discrimination scores using the Maryland CNC test were 100 percent bilaterally.? His reported Puretone thresholds in decibels were:???? ???? ???? HERTZ???? ???? ???? ???? ???? 500???? 1000???? 2000???? 3000???? 4000???? RIGHT???? 25?? 25 15 25 25 LEFT???? 25 25 15 25 15 ???? No other evidence of record contains post-service audiometric findings. Based on the objective medical evidence, the Board concludes that the Veteran's hearing impairment is not at the level of a disability for VA compensation purposes.? In this regard, the Veteran's auditory thresholds were below 26 decibels at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz bilaterally throughout the period on appeal.? Finally, his speech recognition scores were 94 percent or greater bilaterally throughout the period on appeal.? As such, the Board finds that he does not have a hearing loss disability as contemplated by 38?C.F.R. §?3.385.???? While the Veteran believes that he has a current diagnosis of hearing loss, he is not competent to provide a diagnosis in this case.? The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).? Consequently, the Board gives more probative weight to the competent medical evidence.??? As the competent medical evidence does not demonstrate that the Veteran's hearing loss rises to the level of a disability in accordance with 38?C.F.R. §?3.385, service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.? However, as the evidence of record is persuasively against the claim, the doctrine is not applicable in the instant appeal.? See 38?U.S.C. §?5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1?Vet. App.?49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. 4. Entitlement to service connection for a right ankle disability is remanded. 5. Entitlement to service connection for a left foot disability is remanded. 6. Entitlement to service connection for a right foot disability is remanded. The issues of entitlement to service connection for a neck disability, a back disability, bilateral ankle disabilities, and bilateral foot disabilities are remanded to correct duty to assist errors that occurred prior to the rating decisions on appeal. The AOJ obtained VA examinations and medical opinions in September 2023 and January 2024, prior to the decisions on appeal. However, these medical opinions do not provide adequate rationales regarding whether the Veteran's claimed disabilities had their onset during his period of active duty service or are otherwise related to his period of active duty service. In this regard, during the aforementioned VA examinations the Veteran provided competent and credible lay evidence asserting that his claimed disabilities manifested during his period of active duty service. Specifically, the Veteran asserted that his current neck, back, and bilateral feet disabilities manifested in 1985, while his current ankle disabilities manifested in 1984. (9/18/2023, C&P Exam, p. 2); (1/28/2024, C&P Exam, p. 2). However, the September 2023 and January 2024 medical opinions did not acknowledge or address the Veteran's lay assertions in providing opinions on the etiology of the claimed disabilities. The Board finds that the September 2023 and January 2024 medical opinions are inadequate as the opinions relied solely on the Veteran's in-service medical records without addressing or acknowledging his competent and credible lay assertions. While the contemporaneous medical records do not confirm the Veteran's lay assertions, it is well established that a?lack of contemporaneous records alone does not render?lay evidence?not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Moreover, nothing in the regulatory or statutory provisions require both medical and competent lay evidence. Indeed, competent lay evidence can be sufficient in and of itself to substantiate a disability claim. Id. at 1335. Given that the September 2023 and January 2024 medical opinions failed to duly consider the lay evidence of record, the Board finds that the opinions are inadequate. As such, the Board finds that a duty to assist error was committed prior to the decisions on appeal. The claims must therefore be remanded for further medical development. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed neck disability. The examiner must review the claims file and provide a response to the following: Is the Veteran's claimed neck disability at least as likely as not (likelihood at least approximately balanced or equal) related to service, including a motor vehicle accident in 1985 while stationed at Fort Carson? In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms, as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for a VA examination for his claimed back disability. The examiner must review the claims file and provide a response to the following: Is the Veteran's claimed back disability at least as likely as not (likelihood at least approximately balanced or equal) related to service, including falling off a 5-ton truck onto his back? In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms, as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for a VA examination for his claimed bilateral ankle disabilities. The examiner must review the claims file and provide a response to the following: Is the Veteran's claimed left ankle and/or right ankle disability at least as likely as not (likelihood at least approximately balanced or equal) related to service, including twisting his ankle multiple times during service? In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms, as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination for his claimed bilateral foot disabilities. The examiner must review the claims file and provide a response to the following: Is the Veteran's claimed left foot and/or right foot disability at least as likely as not (likelihood at least approximately balanced or equal) related to service, including as a result of marching? In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms, as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glenn, Robert 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.