Citation Nr: 18139667
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 16-10 140
DATE:	September 28, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
Entitlement to service connection for tinnitus is denied.
Entitlement to service connection for an abnormal liver/kidney disease is denied.
FINDINGS OF FACT
1. The Veteran does not have bilateral hearing loss for VA compensation purposes.
2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of tinnitus.
3. The preponderance of the evidence is against finding that an abnormal liver/kidney disease began during active service, or is otherwise related to an in-service injury, event, or disease. 
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
3. The criteria for service connection for an abnormal liver/kidney disease have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 1993 to June 1996.
In March 2013, the Veteran filed a claim seeks service connection for an abnormal liver/kidney disease.  In August 2013, he filed an additional claim for bilateral hearing loss and tinnitus.
In a May 2013 rating decision, the VA Regional Office (RO) denied the claim for an abnormal liver/kidney disease; and, in a September 2014 rating decision, denied the claim for bilateral hearing loss and tinnitus.  The Veteran appealed.
The claims are now before the Board for adjudication.
Duty to notify and assist
The Veteran has not raised any issues with the duty to notify.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board”).
The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  Also of record are VA examinations conducted in April 2013 (liver/kidney) and in August 2014 (hearing loss/tinnitus).
The Veteran has not referred to any additional, unobtained, relevant, available evidence.  Thus, the Board finds that VA has satisfied the duty to assist.  No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection
To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).
1. Entitlement to service connection for bilateral hearing loss.
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 Veteran claims he has bilateral hearing loss as a result of his military service.
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
As there is no competent evidence of a current bilateral hearing loss disability, the Board concludes that the preponderance of the evidence is against granting service connection. 
In August 2014, the Veteran underwent an audiological VA examination. His puretone thresholds, in decibels, were as follows:
Frequency (Hz)	500	1000	2000	3000	4000
 Right	20	25	25	20	15
 Left	25	25	25	20	15

Speech recognition scores, performed with the Maryland CNC test, were 100 percent in the right ear and 100 percent in the left ear. 
Here, the VA examination findings for the bilateral ears do not demonstrate disability, as the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is not 40 decibels or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are not 26 decibels or greater; and speech recognition scores using the Maryland CNC Test are not less than 94 percent.  38 C.F.R. §3.385.  As such, the Veteran’s hearing loss is not considered disabling according to VA standards (38 C.F.R. § 3.385), and the Veteran’s claim for entitlement to service connection for bilateral hearing loss must be denied.
The Board acknowledges the Veteran’s report of being exposed to loud noise while serving in the military.  However, in order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a Veteran’s appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim”); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  In addition, the Veteran is not competent to diagnose himself with bilateral hearing loss.  Consequently, in light of the findings of the VA examination showing that the Veteran does not have a current hearing loss disability for VA compensation purposes, the Board concludes that the Veteran’s statements and opinions as to diagnosis and etiology are of no probative value.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  Because the competent evidence of record does not establish that the Veteran has a current diagnosis of hearing loss for VA compensation purposes, the claim must be denied.
2. Entitlement to service connection for tinnitus.
The Veteran claims he has tinnitus as a result of his military service.
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
As there is no competent evidence of a current diagnosis of tinnitus, the Board concludes that the preponderance of the evidence is against granting service connection. 
The Veteran underwent a VA examination for tinnitus in August 2014.  The examiner noted in the written report that the Veteran specifically denied having tinnitus, and thus no medical opinion was provided.
In light of the Veteran’s May 2015 Notice of Disagreement (NOD) that followed the August 2014 VA examination, wherein the Veteran states he was never able to fully explain having recurrent tinnitus to the VA medical examiner, the Board reviewed the evidence of record to determine if there was any complaint, diagnosis or treatment for tinnitus.
Service treatment records are associated with the Veteran’s claim file.  These records are silent as to any complaint, diagnosis, or treatment of tinnitus.
Post service medical records from the Houston VAMC are associated with the Veteran’s claim file.  These records are silent as to any complaint, diagnosis, or treatment of tinnitus.
Other post service treatment records are associated with the Veteran’s claim file.  These records are silent as to any complaint, diagnosis, or treatment of tinnitus.
The Board acknowledges the Veteran’s reports of being exposed to loud noise while serving in the military, however, in order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a Veteran’s appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim”); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Consequently, in light of the VA examiner’s statement that the Veteran specifically denied having tinnitus, and the lack of a current diagnosis of tinnitus, the Board concludes that the Veteran’s statements and opinions as to etiology are of no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  Because the competent evidence of record does not establish that the Veteran has a current diagnosis of tinnitus, the claim must be denied.
3. Entitlement to service connection for an abnormal liver/kidney disease.
The Veteran seeks service connection for an abnormal liver/kidney disease, claiming these conditions were caused by the medication he takes for his service-connected lower back strain.
The question for the Board is whether the Veteran has a current disability that 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 current diagnosis of renal insufficiency and had an abnormal liver function test in 2012, the preponderance of the evidence weighs against finding that these conditions began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
Service treatment records are associated with the Veteran’s claim file.  These records are silent as to any complaint, diagnosis, or treatment of any liver or kidney disease.  The May 1996 exit exam, Report of Medical Examination, reflects the Veteran had a normal exit exam with only alopecia noted.  The May 1996 exit exam, Report of Medical History, reflects the Veteran checked the box “no” when asked if he had or ever had kidney stones or blood in urine; and, when asked if he had or ever had stomach, liver or intestinal trouble.
Post service medical records from Correctional Managed Health Care are associated with the Veteran’s claim file.  A November 2011 record reflects the Veteran had elevated creatinine levels.  Renal insufficiency was first observed in April 2012.  A November 2012 record diagnosed the Veteran with Stage Two Kidney Disease.  None of these records state the cause of these diagnosed conditions was the medication used for the Veteran’s service-connected lumbar strain.
The Veteran underwent a VA examination of his liver and kidney in April 2013.  The examiner noted in her written report that she conducted an in-person examination of the Veteran and reviewed the Veteran’s VA treatment records.  As it relates to the Veteran’s liver, the examiner noted a 2012 abnormal liver function test.  The examiner opined that the Veteran has elevated liver enzymes but these abnormalities are less likely as not caused by or a result of medications used for the Veteran’s back and leg.  As rationale, the examiner stated there are only two lab results for comparison (2006 and 2013).  Although liver enzyme has increased, there is not enough evidence and comparison of labs to suggest that gabapentin [medication] caused this elevation.  As it relates to the Veteran’s kidney disease, the examiner noted a 2012 diagnosis of renal insufficiency.  The examiner opined that these abnormalities are less likely than not caused by or a result of medications used for the Veteran’s back and leg.  As rationale, the examiner stated there are only two lab results for comparison (2006 and 2013).  Renal function has remained stable since 2006.  There is no evidence to suggest that gabapentin [medication] has caused renal function decline/insufficiency based on lab results.
The Board has also considered the Veteran’s lay statements concerning his belief that his abnormal liver/kidney disease, diagnosed over 15 years after service, is due to service.  With regard to the Veteran’s contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Although the Veteran is generally competent to report symptoms related to his liver and/or kidney, the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology.  Id.; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  
As such, the Board finds that, other than the Veteran’s unsupported contentions, there is simply no evidence in the record of any etiological relationship between the Veteran’s abnormal liver/kidney disease and his time in service.  Further, there is simply no mention in VA and other treatment records of a relationship between the Veteran’s service and his current abnormal liver/kidney disease, or any other competent evidence to suggest an etiological relationship between the Veteran’s service and his current abnormal liver/kidney disease.
Thus, the criteria for service connection for an abnormal liver/kidney disease have not been met.  The evidence weighs against the Veteran’s claim.  Service connection for an abnormal liver/kidney disease must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Jiggetts, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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