HEARING LOSS

CLAIRE M. DAVIDOSKI · 2023 · Case ID: A23009649

DENIED

Summary

The veteran, who served from February 1982 to June 1982 as an armor crewman, appeals the denial of service connection for bilateral hearing loss, tinnitus, a back condition, diabetes mellitus type II, and total disability based on individual unemployability (TDIU). The Board denied service connection for hearing loss, finding that while the veteran had a current diagnosis and was exposed to hazardous noise, the service treatment records were silent regarding complaints or treatment for hearing loss, and the first evidence of hearing loss appeared 38 years post-service, preponderating against a service connection. The Board also denied service connection for tinnitus, noting the VA examiner opined it was related to hearing loss, which was not service-connected, and that the veteran's own statements about onset were vague. For the back condition and diabetes mellitus type II, the Board denied service connection, stating that the veteran asserted the conditions but did not submit medical records or indicate where such records might be held, and the service treatment records were silent. The Board found no pre-decisional duty to assist error in not ordering VA examinations, as the veteran's assertions were not sufficient without supporting evidence or explanation of nexus. Finally, the claim for TDIU was denied because the veteran has no service-connected disabilities, a prerequisite for TDIU. The Board found the weight of the evidence against all claims, and as the benefit of the doubt rule did not apply, all claims were denied.

Rationale

No in-service complaints or treatment for hearing loss in STRs; First evidence of hearing loss 38 years post-service; Preponderance of evidence against service connection

Special Benefit

TDIU

Docket No.

200528-100306

Full Decision Text

Citation Nr: A23009649
Decision Date: 05/10/23 Archive Date: 05/10/23

DOCKET NO. 200528-100306
DATE: May 10, 2023

ORDER

Entitlement to service connection for hearing loss is denied.

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for a back condition is denied.

Entitlement to service connection for diabetes mellitus type II is denied.

Entitlement to total disability based on individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran's bilateral hearing loss is not related to active service.

2. The Veteran's tinnitus is not related to active service.

3. The evidence of record does not show that the Veteran has a currently diagnosed back disorder.

4. The evidence of record does not show that the Veteran has currently diagnosed diabetes mellitus type II.

5. The Veteran does not have any service-connected disabilities which could support a claim for TDIU.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309.

2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310.

3. The criteria for entitlement to service connection for a back condition have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).

4. The criteria for entitlement to service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).

5. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from February 1982 to June 1982.

In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the March 2020 agency of original jurisdiction (AOJ) decision on appeal. 38?C.F.R. § 20.301.

The Board notes that evidence was added to the claims file during a period of time when new evidence was not allowed, specifically, with the Veteran's submission of his VA Form 10182 in May 2020. As the Board is deciding the aforementioned claims, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim 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.

1. Entitlement to service connection for hearing loss

The Veteran contends that, due to hazardous noise exposure during active service, he now has bilateral hearing loss. After a thorough review of the evidence, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted.

In March 2020, the AOJ issued a rating decision denying entitlement to service connection for bilateral hearing loss. Within the rating decision, the AOJ listed favorable findings that the Veteran's DD-214 shows DOD specialty of armor crewman and a current diagnosis of bilateral hearing loss. C.F.R. § 5104A.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that
review of the evidence, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). 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).

To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).

Service connection can also be established through application of a statutory presumption for chronic diseases, to include organic diseases of the nervous system, such as sensorineural hearing loss and tinnitus, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b).

The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, or 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.

The Board concludes, in accordance with the AOJ's favorable finding, that the Veteran has a diagnosis of bilateral hearing loss that meets the criteria of impaired hearing under VA regulations based on the January 2020 VA examination. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The Veteran contends that he was exposed to loud noise during active service while he was in training. The Veteran's DD-214 shows he was assigned as an armor crewman. In the March 2020 rating decision, a favorable finding was issued that VA recognized that the Veteran was exposed to hazardous noise during active service.

The January 2020 VA examiner opined that the Veteran's right and left ear hearing loss were not at least as likely as not due to hazardous noise exposure in active service. The rationale was based in part on the service treatment records (STRs) showing no complaints or treatment for hearing loss in active service, and that the current audiogram was the first evidence of bilateral hearing loss, 38 years post service. The examiner commented, "Medical literature does not support that a delayed onset or retroactive effect is expected to be evidenced as hearing loss years after being exposed to the noise exposure. On the other hand, hearing loss might also be associated to the combined effect of middle ear pathology, history of familial hearing loss, normal aging process due to progressive inner ear
opined that the Veteran's right and left ear hearing loss were not at least as likely as not due to hazardous noise exposure in active service. The rationale was based in part on the service treatment records (STRs) showing no complaints or treatment for hearing loss in active service, and that the current audiogram was the first evidence of bilateral hearing loss, 38 years post service. The examiner commented, "Medical literature does not support that a delayed onset or retroactive effect is expected to be evidenced as hearing loss years after being exposed to the noise exposure. On the other hand, hearing loss might also be associated to the combined effect of middle ear pathology, history of familial hearing loss, normal aging process due to progressive inner ear dysfunction, and exposure to occupational noise exposure."

Even if no hearing loss or auditory shifts are noted in the service treatment records, the Court has held section 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board notes that the Veteran's service treatment records (STRs) contain an entry medical examination dated December 1981 with audiogram, but the Veteran was separated from active service after four months and declined to have a medical examination. The Veteran's STRs are otherwise silent with regard to complaints or treatment for hearing loss.

Further, the evidence of record does not indicate that the Veteran had hearing loss during service or within a year of his separation. As the January 2020 VA examiner noted, that examination was the first medical evidence of hearing loss in the 38 years since separation from active service which preponderates against entitlement to service connection for hearing loss based on presumption. 38 C.F.R. §§ 3.307, 3.309.

The Board acknowledges that the Veteran believes that his hearing loss condition is related to service and VA has conceded that he was exposed to hazardous noise during active service. To the extent that the Veteran links his diagnosed hearing loss condition to his active military service, he is not competent to render such an opinion. While the Veteran is competent to provide evidence of symptoms or report a contemporaneous diagnosis provided by a physician, he does not have requisite medical training to provide an etiology opinion. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosing hearing loss and providing an opinion as to the etiology is a complex medical question requiring knowledge of symptoms and interpretation of diagnostic tests and pathology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Board finds that the evidence is against the Veteran's claim. As the benefit of the doubt rule does not apply, entitlement to service connection for bilateral hearing loss is denied. 38 C.F.R. §§ 3.303.

2. Entitlement to service connection for tinnitus

The Veteran contends that he has tinnitus as a result of hazardous noise exposure during active service or as due to hearing loss. After a thorough review of the evidence, the Board finds that entitlement to service connection for tinnitus is not warranted.

Service connection may be established, on a secondary basis, for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection requires evidence demonstrating that the disability is either (1) proximately due to or the result of a service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310.

The January 2020 VA examination recorded that the Veteran reported occasional right ear tinnitus for many years without explanation of circumstances of onset. The examiner opined that the Veteran's tinnitus was related to the hearing loss condition.

The Board acknowledges the Veteran's contentions that he developed tinnitus as a result of hazardous noise exposure during active service, but he is not a medical professional with the requisite knowledge to make such a diagnosis or provide an etiology opinion. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence does not otherwise support that the Veteran's tinnitus developed as a result of hazardous noise exposure during active service or otherwise due to an event or injury during active service. The January 2020 VA examiner provided an opinion that the tinnitus is a symptom of hearing loss. As the Veteran is not service-connected for hearing loss, secondary service connection on that basis is not available. 38 C.F.R. § 3.310.

Further, the evidence of record does not indicate that the Veteran had tinnitus during service or within a year of his separation. As the January 2020 VA examiner noted, the Veteran said he had right ear tinnitus symptoms for several years without explanation or details of onset, which preponderates against entitlement to service connection for tinnitus based on presumption. 38 C.F.R. §§ 3.307, 3.309.

The Board finds that the weight of the evidence is against the Veteran's claim. As the benefit of the doubt rule does not apply, entitlement to service connection for tinnitus is denied. 38 C.F.R. §§ 3.303, 3.310.

3. Entitlement to service connection for back condition

The Veteran contends that he has a back condition that has rendered him unable to forward flex more than 30 degrees and has resulted in incapacitation and bed rest. After a thorough review of the evidence, the Board finds that entitlement to service connection for a back condition is not warranted.

The Board notes that a VA examination for a back condition was not performed and concludes that it is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the Board identifies a pre-decisional duty to assist error, under Pub. L. No. 115-55, section 2(d)(2); 38 C.F.R. §§ 3.159(c), 20.802(a), the Board must remand the appeal back to the AOJ with instructions to correct the error. Under McLendon, a VA examination is warranted where the record does not contain sufficient information to make a decision on the claim. Id. That is not the case here. Rather, the information of record reflects that the Veteran states he has a back condition. The Veteran did not submit medical records regarding this condition or indicate that VA or another federal entity holds such medical records. The Social Security Administration replied that any related medical records that may have existed were destroyed. The Veteran did not explain how the purported back condition may be related to active service. The Veteran's STRs are silent with regard to complaints of or treatment for back problems. Therefore, even under the low threshold of McLendon, an examination for this claim is not warranted. Accordingly, the Board finds that no pre-decisional duty to assist error was committed in not scheduling the Veteran for a VA examination.

The Board acknowledges the Veteran's contentions that he has a back condition and that he is competent to report back pain and other related symptoms or to report what a medical provider has diagnosed, but as he does not have the requisite medical training, he is not competent himself to offer a diagnosis or etiology of such a condition. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, while the Veteran may possibly meet the first element of entitlement to service connection based on his assertion of back pain and while there may be medical evidence supporting that, such evidence was not provided in the claim process. The Veteran may elect to file a supplemental claim and provide supporting evidence or information as to medical provider which may hold this information. The available current evidence does not support the Veteran's contentions that he has a diagnosed back disability. As a current diagnosis is the cornerstone of a service connection claim, entitlement to service connection for a back condition is not supported. Brammer v. Derwinski,
andreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, while the Veteran may possibly meet the first element of entitlement to service connection based on his assertion of back pain and while there may be medical evidence supporting that, such evidence was not provided in the claim process. The Veteran may elect to file a supplemental claim and provide supporting evidence or information as to medical provider which may hold this information. The available current evidence does not support the Veteran's contentions that he has a diagnosed back disability. As a current diagnosis is the cornerstone of a service connection claim, entitlement to service connection for a back condition is not supported. Brammer v. Derwinski, 3 Vet. App. at 225 (1992).

The Board finds that the weight of the evidence is against the Veteran's claim. As the benefit of the doubt rule does not apply, entitlement to service connection for a back condition is denied. 38 C.F.R. §§ 3.303.

4. Entitlement to service connection for diabetes mellitus type II

The Veteran contends that he has diabetes mellitus type II that has resulted in regulation of activities and restricted diet. After a thorough review of the evidence, the Board finds that entitlement to service connection for diabetes mellitus type II is not warranted.

The Board notes that a VA examination for diabetes mellitus was not performed and concludes that it is not necessary. See McLendon, 20 Vet. App. at 79. Under McLendon, a VA examination is warranted where the record does not contain sufficient information to make a decision on the claim. Id. That is not the case here. Rather, the information of record reflects that the Veteran states he has diabetes mellitus type II. The Veteran did not submit medical records regarding this condition or indicate that VA or another federal entity holds such medical records. The Social Security Administration replied that any related medical records that may have existed were destroyed. The Veteran did not explain how the purported diabetes may be related to active service. The Veteran's STRs are silent with regard to complaints of or treatment for diabetic problems. Therefore, even under the low threshold of McLendon, an examination for this claim is not warranted. Accordingly, the Board finds that no pre-decisional duty to assist error was committed in not scheduling the Veteran for a VA examination.

The Board acknowledges the Veteran's contentions that he has diabetes mellitus type II and that he is competent to report symptoms or to report what a medical provider has diagnosed, but as he does not have the requisite medical training, he is not competent himself to offer a diagnosis or etiology of such a condition. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, while the Veteran may possibly meet the first element of entitlement to service connection based on his assertion that a medical doctor has diagnosed him with diabetes and, while there may be medical evidence supporting that, such evidence was not provided in the claim process. The Veteran may elect to file a supplemental claim and provide supporting evidence or information as to medical provider which may hold this information. The available current evidence does not support the Veteran's contentions that he has a diagnosed diabetes condition, and as a current diagnosis is the cornerstone of a service connection claim, entitlement to service connection for diabetes mellitus type II is not supported. Brammer v. Derwinski, 3 Vet. App. at 225 (1992).

The Board finds that the weight of the evidence is against the Veteran's claim. As the benefit of the doubt rule does not apply, entitlement to service connection for diabetes mellitus type II is denied. 38 C.F.R. §§ 3.303.

5. Entitlement to total disability based on individual unemployability (TDIU)

The Veteran contends that he developed medical conditions during active service that have rendered him unable to secure or follow a substantial gainful occupation to include sedentary tasks. May 2020 VA Form 10182.

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify
to include sedentary tasks. May 2020 VA Form 10182.

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more service-connected disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

The Veteran does not have any service-connected disabilities. Therefore, entitlement to TDIU must be denied as there are no service-connected disabilities which could be found to be causing individual unemployability. The Board finds that the weight of the evidence is against the claim, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

CLAIRE M. DAVIDOSKI

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. Miller, 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.

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