Citation Nr: 1315397 Decision Date: 05/09/13 Archive Date: 06/28/13 DOCKET NO. 09-11 138A DATE MAY 09 2013 On appeal from the Department of Veterans Affairs Regional Office in Waco. Texas THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a left knee disability, to include degenerative joint disease or recurrent subluxation. 3. Entitlement to service connection for a cervical spine disability, to include cervical brachial syndrome. 4. Entitlement to service connection for a bilateral shoulder disability, to include scapular bursitis. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Fields. Associate Counsel INTRODUCTION The Veteran had active duty service from November 2001 to June 2002 and from June 2005 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco Texas. The Board remanded the issues on appeal for further development in August 2012. As noted at that time, although the Veteran was scheduled for a Board hearing at the RO in May 2012, he failed to appear and has not requested a new hearing. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). As discussed below, the remand directives have been substantially completed as to the question of service connection for right ear hearing loss. However, further development is necessary for a fair adjudication of the remaining issues. Therefore, the issues of entitlement to service connection for left knee, cervical spine, and bilateral shoulder disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is no current right ear hearing loss disability for VA purposes. -2- CONCLUSION OF LAW The criteria to establish service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385(2012). REASONS AND BASES FOR FINDING AND CONCLUSION l. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, the Veteran was advised in May 2008, prior to the initial unfavorable rating decision, of the evidence and information necessary to substantiate his claims, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman, This is sufficient notice. Concerning the duty to assist, the claims folder includes the Veteran's service treatment and personnel records, as well as post service treatment records dated -3- through 2008. VA treatment records contained in the Virtual VA paperless claims processing system were considered by the RO in the supplemental statement of the case issued in March 2012. There are also VA and private treatment records dated from 2006 through 2008 in the service treatment records envelopes. All pertinent records concerning the Veteran's claimed hearing loss, including audiological testing conducted in 2008 (prior to the VA examination), are of record. There is no indication that he receives benefits from the Social Security Administration. The Veteran was afforded a VA audiological examination in August 2008. As directed in the prior remand, the agency of original jurisdiction (AOJ) sought a clarifying opinion with respect to the two speech discrimination scores that were recorded for the right ear at that time. In a November 2012 addendum report, a VA audiologist explained which score accurately represented the Veteran's level of hearing impairment, and why that was the case. The Board notes that the addendum report was authored by a VA audiologist other than the individual who conducted the August 2008 VA examination. However, there is no indication or argument that the addendum report is inadequate, or that a new VA examination was necessary to clarify the degree of the Veteran's hearing impairment. Further, there is no indication or argument that Veteran's hearing has decreased since the last VA examination, or that he has had any treatment for hearing loss since that time. Under these circumstances, the prior remand directives were substantially completed, and the medical evidence is sufficient with respect to hearing loss. Another remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Sovini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not prejudicial or harmful to the essential fairness of the proceedings. The Veteran will not be prejudiced by a decision. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). -4- Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, organic diseases of the nervous system will be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent within one year after separation from service, even if there is no evidence of such disease during service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system. Where a condition is noted during service (or within the applicable presumptive period) but is not chronic, there must be evidence of continuity of symptomatology after separation from service. 38 C.F.R. § 3.303(b). Generally, service connection requires competent and credible evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. 38 C.F.R. § 3.304; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). Under C.F.R. § 3.303(b), the nexus element may be shown by medical or lay evidence where there is competent evidence of continuity of symptomatology for a listed chronic disability. Barr, 21 Vet. App. at 307. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Veteran contends that he has a right ear hearing loss disability due to hazardous noise exposure during combat service from 2005 to 2006. The evidence of record reflects that he received a Combat Action Badge, which shows combat service for VA purposes, for activities including videotaping units that were in the direct line of insurgent activity. Further, his reports of hazardous noise exposure from various weapons and explosives is consistent with the -5- circumstances of such service. Therefore, his complaints of hazardous noise exposure and subjective hearing loss in service are accepted despite the lack of supporting documentation in service treatment records. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d): Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). To be entitled to service connection, the evidence must also establish a current disability as a result of such in-service noise exposure. See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). Impaired hearing will be considered to be a disability for VA purposes 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. Here, the evidence includes several sets of audiological testing. In June 2005, prior to the Veteran's deployment to Iraq, a reference audiogram showed right ear puretone thresholds at the 500 to 4000 Hertz levels of 15, 10, 0, 5, and 0 decibels, respectively. The Veteran was discharged from active duty in September 2006. Thereafter, in March 2007, a reference audiogram showed right ear puretone thresholds at the 500 to 4000 Hertz levels of 20, 20, 10, 5, and 0 decibels, respectively. During a June 2007 VA treatment session, the Veteran reported a "little hearing loss," but no further audiological evaluation was done. Audiological testing conducted in April 2008 showed right ear puretone thresholds at the 500 to 4000 Hertz levels of 35, 35, 40, 35, and 25 decibels. The provider noted a significant threshold shift as compared with the March 2007 audiological testing results. Specifically, there was an upward shift at the 1000 to 4000 levels of 15, 30, 30, and 25 decibels. The speech reception threshold was 100 percent. The Veteran was aware of a change in his hearing and the need for follow-up. The impression was right ear conductive hearing loss. The Board notes that the March 2007 and April 2008 audiological testing were both after the Veteran's active duty. -6- In his May 2008 claim, the Veteran reported that he first had hearing loss and tinnitus in November 2005, and that he was treated in April 2008. He stated that he was given a H2 profile in service for hearing loss with ringing in the ear. (The Veteran has already been granted service connection for tinnitus, and service connection was denied for left ear hearing loss based on lack of a current disability.) Thereafter, the Veteran was afforded a VA audiological examination in August 2008. He reported hearing loss that had been present since 2005, with difficulty understanding speech in background noise in groups, with television, and in class. He also reported hazardous noise exposure during combat service and stated that he used hearing protection about half the time, as the demands of communication often prevented its use. He denied any significant civilian noise exposure. The August 2008 VA examiner summarized the results of the prior hearing tests. In particular, the examiner stated that the earlier data from 2008 (discussed above) indicated mild loss in the right ear, and the audiogram at that time showed bone conduction results that indicated the mild loss in the right ear was conductive in nature. All masked bone conduction thresholds were within normal limits. During the examination, the VA examiner recorded right ear pure tone thresholds at the 500 to 4000 Hertz levels of 5, 5, 0, 0, and 0 decibels, respectively. Word recognition scores (using the Maryland CNC test) in the right ear were 92 percent at 90 decibels and 96 percent at 75 decibels. The examiner stated that puretone threshold testing showed normal hearing in both ears, and speech recognition ability was excellent with no reduction for high-level stimuli. The examiner diagnosed hearing within normal limits bilaterally, and stated that the mild conductive loss that was recorded earlier in 2008 did not reflect permanent hearing loss. In a November 2012 addendum report, a VA audiologist stated that the Veteran's right ear speech discrimination score from the August 2008 VA examination was 96 percent, and that he had normal hearing. She further stated that a review of the claims file in August 2008 showed that there was no permanent shift in hearing -7- thresholds during the Veteran's active service. The audiologist explained the meaning of the two word recognition scores for the right ear at that time. Specifically, as the Veteran had reported unilateral tinnitus, the audiologist had to perform testing to rule out retrocochlear involvement, which involves an average presentation level and louder than normal presentation level and comparison of the word recognition scores. The Veteran's scores were 96 percent at 75 decibels (average intensity level) and 92 percent at 90 decibels (louder than average intensity level). The audiologist stated that individuals often perform worse at these louder levels due to the potential for distortion of the signal, and a word recognition test performed at this loud level is not a reliable test for actual expected speech understanding. Rather, the audiologist indicated that the 96 percent speech discrimination score was an accurate depiction of the Veteran's level of hearing. There is no argument or indication that the Veteran's right ear hearing has v decreased since the last medical evidence of record, or that the August 2008 VA examination and November 2012 addendum report are inadequate in any way. Although the Veteran is competent as a lay witness to report observable symptoms of hearing loss, such as difficulty understanding conversations, he is not competent to diagnose a hearing loss disability. Rather, this is based on specific, objective measurements that must be determined shown through audiological testing. See id: see also 38 C.F.R. § 4.85 (requiring that hearing examinations for VA disability compensation be conducted by state licensed audiologists). Considering all evidence of record, the Board finds that there is no current right ear hearing loss disability for VA purposes. Rather, although the Veteran had elevated pure tone thresholds during audiological testing in March 2008 (after his active duty period), his pure tone thresholds were well within normal limits at all other times, including in August 2008 VA examination. As explained above, the more probative speech discrimination scores have also consistently been 96 percent or higher. See 38 C.F.R. § 3.385. VA audiologists indicated in August 2008 and November 2012 that the Veteran had normal hearing in the right ear, and that there was no permanent shift in hearing or hearing disability of the right ear. -8- In sum, although the Board recognizes the Veteran's combat noise exposure and his reported symptoms, the weight of the evidence is against a finding that he has a current right ear disability as defined by VA. Service connection may not be granted where there is no present disability shown. See Brammer v. Derwinski, 3 Vet. App. 223. 225 (1992). Therefore, as the preponderance of the evidence is against service connection, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim must be denied. 38 C.F.R. § 3.102. ORDER Service connection for right ear hearing loss is denied. REMAND With respect to the remaining claims, the Board notes that the Veteran failed to appear for a VA examination in December 2012 to determine the nature and etiology of his any current left knee, cervical spine, or bilateral shoulder disabilities, as directed in the prior remand. He did not provide good reason-for his failure to appear,' although he indicated in February 2013 that he would be unable to appear for any examinations until after June 1, 2013, without providing a reason. Generally, where a veteran fails to appear for a VA examination in connection with an original claim for service connection, without good cause, the claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655. Nevertheless, in this case, a review of the claims tile indicates that additional development, other than a VA examination, is necessary for a fair adjudication. As such, the case will be remanded for such development, and the Veteran will be allowed another opportunity to appear for the necessary VA examination(s). Specifically, as noted in the prior remand, the Veteran has provided competent evidence that he began to have left knee symptoms during active duty in Iraq from -9- carrying heavy loads while participating in combat missions in Iraq from 2005 to 2006. As he received a Combat Action Badge based on such service, his reports of left knee injury during such service are accepted despite the lack of supporting documentation of any injuries in service treatment records. 38 U.S.C.A. § 1154(b). The Board notes that the majority of the Veteran's statements have referred primarily to his left knee and back pain. Me has already been granted service connection for lumbar strain (claimed as back pain and thoracic pain). The Veteran was treated for these conditions, as well as for cervical pain or cervicobrachial syndrome, chronic left shoulder problems, scapula bursitis and muscle damage in 2007 and 2008. See. e.g., VA treatment records dated in June 2007 and June 2008; April 2008 private records from Spine and Rehabilitation Center. The Veteran also had service in the Army Reserves after his period of active duty ended in September 2006. Indeed, he requested a note for limited duty from his VA provider in September 2007, when he was noted to be status post left knee injury. There are also functional capacity certificates associated with the Veteran's military service dated in June 2007 and April 2008. Further, the Veteran was treated for complaints in the left knee, cervical spine, and shoulders or scapular area in 2007 and 2008. As such, it is unclear if there is any relationship between any current disabilities in such areas and the Veteran's active duty and active Reserves service. In this regard, in addition to periods of active duty, service connection may be granted for disability resulting from disease or injury that is incurred in or aggravated in line of duty during active duty for training (ACDUTRA), or from injury incurred in or aggravated in line of duty during inactive duty training (IDT). 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3304;{Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Board notes that certain evidentiary presumptions apply to all periods of active duty service, including a presumption of sound condition upon entrance into service, a presumption of aggravation during service of a preexisting disease or injury that undergoes an increase in severity during service, and a presumption of service incurrence for arthritis, if such condition manifests to a level of 10 percent disabling - 10- If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 5. The RO/AMC should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. If it does not, an addendum should be requested. 6. If any benefit on appeal remains denied, issue a supplemental statement of the case, before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals - 15-