Citation Nr: 18123945
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 15-29 368
DATE:	August 7, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
REMANDED
Entitlement to service connection for pes planus is remanded.
Entitlement to service connection for a right ankle disorder is remanded.
FINDINGS OF FACT
Bilateral hearing loss for VA purposes has not been diagnosed at any time during the appeal period.
CONCLUSIONS OF LAW
The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.385 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1972 to September 1973. He also had service in the Air Force Reserves. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the VA Regional Office (RO) in Houston, Texas. 
Service Connection
BILATERAL HEARING LOSS
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d).
Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table)).
Service connection may be granted for chronic disabilities, such as sensorineural hearing loss, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C. §§ 1101, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for sensorineural hearing loss may be established based on a continuity of symptomatology from the time of manifestation. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a), such as sensorineural 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 (2017).
At a September 2013 VA audiology examination, the examination report showed that audiometric testing for the Veteran in the right ear was 10 at 500 Hertz, 15 at 1000 Hertz, 10 at 2000, 10 at 3000 Hertz, and 15 at 4000 Hertz.  In the left ear, audiometric testing was 10 at 500 Hertz, 10 at 1000 Hertz, 10 at 2000 Hertz, 15 at 3000 Hertz, and 15 at 4000 Hertz.  Speech audiometry revealed speech recognition ability of 96 percent, right ear, and 100 percent, left ear. No other audiometric examinations/evaluations are of record.
Upon review of the record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has bilateral hearing loss for VA purposes. None of the frequencies was 40 decibels or greater; at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were not 26 decibels or greater; and speech recognition scores using the Maryland CNC Test were not less than 94 percent.  The Veteran does not meet the VA requirements for hearing loss.
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 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran’s sincere belief in his bilateral hearing loss claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has a hearing loss disability for VA purposes at any period of his appeal. 
The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2013), as to the specific issue in this case, the Board finds that the Veteran is not competent to opine on the presence of a hearing loss disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Audiometric testing is necessary.
In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b). However, the doctrine of reasonable doubt is not for application concerning this claim as the weight of the evidence is against it. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal of the claim for entitlement to service connection for bilateral hearing loss must be denied.
REASONS FOR REMAND
1. Entitlement to service connection for pes planus claimed is remanded.
The Veteran is seeking service connection for pes planus (claimed as a bilateral foot disorder). 
The record shows that moderate asymptomatic pes planus was noted on the Veteran’s April 1972 entrance examination. He was treated in June 1972 for pain in both feet, bilateral lowering of metatarsal arches in service, impression pes planus, and given arch supports. Upon discharge from service, clinical evaluation of the Veteran’s feet and lower extremities was normal, as reflected on the August 1973 report of medical examination.
In July 2013, the Veteran underwent a VA flat foot (pes planus) examination. The examiner reported that there was no complaints or treatment for any foot condition and no problems with left foot. The examiner noted that “no indication of aggravation by service. congenital pes planus.”
The Board finds that this opinion is inadequate for rating purposes. Notably, a review of the record and specifically the Veteran’s STRs indicates that the Veteran was treated in service for pain in both feet, pes planus, and given arch supports. Thus, the July 2013 VA examiner’s opinion is inadequate as it is based on the inaccurate factual premise that there was no indication of aggravation by service of pes planus in service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
2. Entitlement to service connection for a right ankle disability is remanded.
The Veteran is seeking service connection for a right ankle disorder. 
In July 2013, the Veteran underwent a VA flat foot (pes planus) examination. The Veteran reported that his ankle ached. The Veteran indicated that “he saw someone recently and was using a walking boot for a while” but not currently. The Veteran noted that he previously had therapy for his ankle. 
The Board also notes that the Veteran indicated on a July 2015 NOD that he submitted evidence to the VA about his right ankle, as he saw a private doctor. These treatment records are not associated with the Veteran’s claims file. Given that VA has been put on notice that there might be relevant outstanding evidence concerning the Veteran’s right ankle claim, the case should be remanded for the Veteran to sign the proper release form so that VA can make reasonable efforts to obtain these records. See 38 C.F.R. § 3.159 (c)(1) (2017).
The matters are REMANDED for the following action:
1. Ask the Veteran to identify and sign the proper release form for any treatment he has received since separation from active service for his right ankle. If the Veteran responds with the necessary information, make reasonable efforts to obtain the records. Notify the Veteran of any unsuccessful efforts and indicate what further steps VA will make concerning the claim. Records of notices sent and responses received should be documented in the claims file.
2. If additional treatment records are obtained, schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his right ankle disorder. The claims file, to include this remand, must be reviewed by the examiner and such review should be noted in the examination report.  After reviewing the claims folder and examining the Veteran the examiner should provide: 
a.	Identify/diagnose any disability of the right ankle that presently exists or that has existed during the appeal period.
b.	State whether it is at least as likely as not (50 percent probability or more) that any identified right ankle disability was incurred during service or otherwise etiologically related thereto.
c.	State whether it is at least as likely as not (50 percent probability or more) that any identified right ankle disability was caused or aggravated by a service connected disability.
Schedule the Veteran for a VA flatfoot (pes planus) examination. The claims file must be reviewed by the examiner and the examiner must note whether the claims file was reviewed. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s pre-existing pes planus increased in severity during his active service. If is determined that the pes planus increased in severity during active duty, then the examiner should provide an opinion on whether there is clear and unmistakable (obvious, manifest and undebatable) evidence that the pes planus did not increase beyond the normal progression of the disorder during active duty.
The examiner is asked to comment on the Veteran’s in-service treatment for pain in both feet, bilateral lowering of metatarsal arches and impression pes planus. A rationale must be provided for each opinion provided.
 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Grzeczkowicz, 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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