Entitlement to service connection for rheumatoid arthritis is remanded
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Citation Nr: 19174803 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 16-20 691 DATE: September 26, 2019 ORDER Entitlement to service connection for hearing loss is denied. REMANDED Entitlement to service connection for rheumatoid arthritis is remanded. Entitlement to service connection for high blood pressure is remanded. Entitlement to service connection for enlarged prostate is remanded. Entitlement to service connection for immune system condition (multiple infections) is remanded. Entitlement to service connection for a testicle condition is remanded. Entitlement to service connection for an eye condition is remanded. FINDING OF FACT 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 bilateral hearing loss. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1962 to July 1964. The Veteran testified before the undersigned Veterans Law Judge via videoconference in April 2019. The hearing transcript is of record. Entitlement to service connection for hearing loss Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection for chronic diseases listed in 38 U.S.C. sections 1101(3) and 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disorder based on hearing loss is governed by 38 C.F.R. § 3.385. 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, or 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 contends that he incurred noise exposure during active service while service with the Medical Corp as an ambulance driver. See April 2019 Board Hearing Trans. p. 12. 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 the Veteran does not have a current diagnosis of hearing loss 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, 1131, 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). The December 2015 VA examiner evaluated the Veteran and determined that, that despite his complaints, the Veteran did not have hearing loss present clinically or according to VA standards. On the authorized audiological evaluation in March 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 15 15 LEFT 15 15 20 10 15 Speech discrimination was 100 percent in each ear. In comparing the December 2015 audiometric results to the regulatory criteria set forth in 38 C.F.R. § 3.385, the Board must conclude that the preponderance of the evidence is against a finding that the Veteran currently has a hearing loss disability as defined by 38 C.F.R. § 3.385 for VA compensation purposes. According to the December 2015 evaluation, the Veteran does not have an auditory threshold of 40 decibels or greater in any of the frequencies, or 26 decibels or greater for at least three of the frequencies in any one ear. There are no subsequent medical records that demonstrate a hearing loss disability as defined by 38 C.F.R. § 3.385 since the Veteran filed his claim. A review of the record fails to show a current diagnosis of hearing loss. The Board is cognizant of the Veteran’s appellate assertions. The Board acknowledges the Veteran’s belief that he has a current hearing loss disability and notes that he is capable of reporting his personal observations concerning his diminished hearing acuity. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, as a layperson without medical training, the Veteran is not qualified to determine whether he has sufficient hearing impairment to qualify as a disability for VA compensation purposes and to etiologically relate his claimed diminished hearing to service or any event of service. Thus, the Veteran’s own implied assertions that he has a hearing loss disability which was incurred in service are afforded no probative weight in the absence of evidence that the Veteran has the expertise to render opinions about medical matters. The Veteran has not submitted any medical evidence to support his contentions or which establishes that, since the Veteran filed his claim, he has a current hearing loss disability as defined by 38 C.F.R. § 3.385. For the reasons stated above, the Board finds that the Veteran does not have hearing loss as defined by VA regulation. Since there is no evidence of a current hearing disability as defined by VA, the preponderance of the evidence is against the claim for service connection. Therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for rheumatoid arthritis is remanded. Consistent with VA's duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2018). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event has a low evidentiary threshold. See 20 Vet. App. at 83. The Veteran is diagnosed with rheumatoid arthritis. See e.g., October 2016 VA treatment report. The Veteran submitted a private nexus opinion in June 2019. According to a physician, Craig Bash, M.D., the Veteran likely had early symptoms of rheumatoid arthritis in service, specifically in June 1962 with stiffness in his neck. However, the June 1962 service treatment records reflect that the Veteran actually reported “no URI, stiff neck, etc.” Therefore, the Board finds the private opinion inadequate as it relied on a factually inaccurate premise. Swann, 5 Vet. App. at 233. Nonetheless, treatment records reflect that the Veteran was diagnosed with rheumatoid arthritis in 1975. He further contends that he had stiffness in his upper and lower body affecting his ability to do his work and lead to unsatisfactory performances during service. Service personnel records confirm that the Veteran served in Germany and received “unsat” ratings for efficiency and conduct in 1963 and 1964. The Veteran also asserts that his rheumatoid arthritis is a result of exposure to extreme temperatures and snow during service. The Board finds that the Veteran was likely exposed to cold weather while stationed in Germany. Therefore, the low evidentiary standard is met, and a VA examination is necessary to determine if the Veteran’s rheumatoid arthritis is attributable to his time on active duty. 2. Entitlement to service connection for immune system condition (multiple infections) is remanded. The Veteran also complained that he experienced multiple infections as a result of serving in below freezing temperatures for a prolonged period during his active service. See April 2016 VA Form 9. Although during the April 2019 Board hearing, the Veteran noted that rheumatoid arthritis in an autoimmune condition, VA treatment records reflect that the Veteran has active problems including unspecified viral infections and other and unspecified immune findings, suggesting an immune condition in addition to his rheumatoid arthritis. Therefore, remand is warranted for an examination to determine the nature and etiology of any immune condition, other that rheumatoid arthritis. 3. Entitlement to service connection for enlarged prostate is remanded. 4. Entitlement to service connection for a testicle condition is remanded. The Veteran also contends his enlarged prostate and testicle conditions are a result of extreme temperatures during his active service. See April 2016 Notice of Disagreement and VA Form 9. As noted above, the Veteran served in Germany and the Board has conceded the Veteran may have been exposed to cold temperatures during his active service. VA treatment records reflect current diagnoses including hypertrophy of the prostate as well as a history of epididymorchitis. See June 2012 VA treatment report. Therefore, on remand, a VA examination and opinion is needed to address the likely etiology of the Veteran’s enlarged prostate and any current testicle condition. 5. Entitlement to service connection for high blood pressure is remanded. 6. Entitlement to service connection for an eye condition is remanded. The Veteran similarly contends that he has hypertension as well as an eye condition that were incurred either as a result of the cold temperatures to which he was exposed during service, or, alternatively, due to his rheumatoid arthritis or related medication. See April 2019 Board hearing trans. VA treatment records reflect diagnoses of hypertension and cataracts. However, no opinion has been provided regarding whether the Veteran’s claimed conditions are related to exposures to cold temperatures in service or his rheumatoid arthritis. Therefore, examination and opinion are warranted to determine whether the Veteran’s hypertension and/or eye condition are related to service or secondary to his rheumatoid arthritis. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an examination to determine the nature and etiology of his claimed rheumatoid arthritis. The entire record must be made available to and reviewed by the clinician. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's rheumatoid arthritis was incurred in, or is otherwise related to, his time on active service, to include exposure to cold in Germany? In rendering this opinion, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. The examiner should consider and discuss the Veteran's contentions, the lay statements of record, his service treatment records, and his VA and private medical records. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The examiner is also asked to consider the Veteran’s records noting the diagnosis of rheumatoid arthritis in 1975. A complete rationale for all opinions should be set forth. 3. Schedule VA examinations to address the nature and etiology of the Veteran's claimed immune conditions, hypertension, eye condition, enlarged prostate, and testicle conditions. The entire record must be made available to and reviewed by the clinician. All indicated studies should be performed. After the foregoing has been completed, please provide an opinion on the following: (a.) Diagnose any immune, testicle, and eye conditions found to be present at any point during the appeal period. (b.) For each disability diagnosed regarding the Veteran’s claimed immune, testicle, and eye conditions as well as hypertension and enlarged prostate, is it at least as likely as not (50 percent or greater probability) that the disability was incurred in or otherwise related to the Veteran’s active service, to include exposure to cold in Germany? (c.) For any eye condition and/or hypertension diagnosed, is it at least as likely as not that the disability was caused or aggravated by his rheumatoid arthritis or treatment taken for rheumatoid arthritis? In rendering the requested opinions, the examiner should consider and discuss the Veteran’s contentions, the lay statements of record, his service treatment records, and his VA and private medical records, including diagnoses of benign hypertrophy of the prostate, epididymorchitis, hypertension and cataracts. A complete rationale for all opinions should be set forth. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.