Citation Nr: 18160689
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-02 361
DATE:	December 27, 2018
ISSUES
1. Entitlement to service connection for bilateral hearing loss (BHL) disability.
2. Entitlement to an initial compensable disability rating for left hand strain.
3. Entitlement to an initial compensable disability rating for left knee patellofemoral syndrome.
4. Entitlement to an initial compensable disability rating for right knee patellofemoral syndrome.
ORDER
Entitlement to service connection for BHL is denied.
REMANDED
The claim of entitlement to an initial compensable disability rating for left hand strain is remanded.
The claim of entitlement to an initial compensable disability rating for left knee patellofemoral syndrome is remanded.
The claim of entitlement to an initial compensable disability rating for right knee patellofemoral syndrome is remanded.
FINDING OF FACT
The Veteran does not have a BHL disability for VA compensation purposes.
CONCLUSION OF LAW
The criteria for service connection for BHL have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from June 1999 to December 2014.  This case comes to the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO).
Service Connection Claim
Service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018).  
To establish direct service connection for a claimed disability there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  
With respect to claim for service connection for BHL, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 
For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include BHL, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018).  
In response to his claim, the Veteran was afforded a VA-contracted examination in November 2014 that did not show a current BHL disability for VA compensation purposes. That is, his Puretone thresholds were as follows:

	HERTZ
	500	1000	2000	3000	4000	AVG.
RIGHT	10	5	20	30	35	22.5
LEFT	10	10	20	30	25	21.25

Speech recognition scores were 100 percent for the right ear and 96 percent for the left ear.

As such, in accordance with 38 C.F.R. § 3.385, the Board finds that the Veteran does not have a current BHL disability for VA compensation purposes.  Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans’ benefits.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  
The Board notes the Veteran is competent to report his experience and symptoms. Moreover, while lay statements are sufficient to describe exposure to loud noises and diminished hearing, lay statements are not competent to diagnose hearing loss disability or the extent of impairment as set forth in VA regulations.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). 
In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit-of-the-doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (2012).
REASONS FOR REMAND
A remand is necessary for additional medical inquiry.    
The Veteran was afforded VA-contracted examinations in January 2015 for his knees and left hand. In this case, it is unclear as to whether the 2015 VA-contracted examiners performed both active and passive / weight-bearing versus non- weight-bearing range of motion testing of the Veteran’s knees and left hand.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  Moreover, in his December 2016 substantive appeal, the Veteran indicated that his disorders had worsened since the January 2015 examinations.  See Green v. Derwinski, 1 Vet. App. 121 (1991).

The matters are REMANDED for the following action:
1. Include in the claims file any VA medical evidence that is not currently in the file.  
2. Schedule an examination to assess nature and severity of bilateral knee disability.  After reviewing the claims file, interviewing the Veteran, and examining the Veteran, the examiner should:  
Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s knees, i.e., the extent of the Veteran’s pain-free motion.
Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done.
Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must also name the precipitating and alleviating factors. The examiner must also estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment.
All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided.
3. Schedule an examination to assess nature and severity of left hand disability.  After reviewing the claims file, interviewing the Veteran, and examining the Veteran, the examiner should:    
Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s left hand, i.e., the extent of the Veteran’s pain-free motion.
Pursuant to Correia, 28 Vet. App. 158, please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done.
Pursuant to Sharp, 29 Vet. App. 26, the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment.
All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided.

 
CHRISTOPHER MCENTEE
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R.M.K., 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

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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