12-24 309
12-24 309
| Board of Vet. App. | May 3, 2017Background
- Veteran served Aug 1989–Nov 1991 and appealed a Nov 2010 RO denial of service connection for bilateral hearing loss and left lower extremity disability.
- Pre-service (June 1988 ROTC) audiogram showed hearing thresholds meeting VA definition of hearing loss (4000 Hz = 45 dB bilaterally), so veteran was not presumed sound on entry.
- VA provided examinations in Aug 2010 and Apr 2015; 2015 audiogram showed no significant threshold shift from 1988 and did not meet current VA disability criteria; speech scores unreliable in both exams.
- Board found no competent probative evidence of aggravation of the preexisting hearing loss during service and denied service connection for bilateral hearing loss (evidence preponderates against claim).
- Claim for left lower extremity (shin splints) lacked an appropriate musculoskeletal etiologic opinion; the Board remanded for a new VA examination and opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for bilateral hearing loss | Hearing loss caused/aggravated by noise exposure in field artillery service | Preexisting hearing loss on entry; VA exams show no aggravation or increase in severity during/after service | Denied — preponderance of evidence shows no aggravation and no current disability meeting VA criteria |
| Service connection for left lower extremity disability | Left leg pain from severe in‑service shin splints | RO lacks adequate musculoskeletal exam/opinion to determine nexus | Remanded for appropriate VA exam and etiological opinion |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (Board must ensure compliance with remand directives)
- Crowe v. Brown, 7 Vet. App. 238 (medical evidence required to show a condition was 'noted' at service entry)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit of the doubt rule and weighing evidence)
- Alemany v. Brown, 9 Vet. App. 518 (denial requires evidence to preponderate against claim)
- Gonzales v. West, 218 F.3d 1378 (Board need not discuss every piece of evidence but must review the record)
- Kutscherousky v. West, 12 Vet. App. 369 (claimant may submit additional evidence during remand process)