Citation Nr: 1125085	
Decision Date: 07/01/11    Archive Date: 07/14/11

DOCKET NO.  09-47 372	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for hearing loss.  

2.  Entitlement to an initial compensable rating for post-concussive headaches.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Neilson, Counsel
INTRODUCTION

The Veteran served on active duty from December 2004 to December 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, in which the RO denied service connection for hearing loss.  Service connection for post-concussive tinnitus, claimed as tinnitus and traumatic brain injury (TBI), was granted.  The Veteran disagreed with that decision, asserting his belief that his post-concussive tinnitus and TBI should have been rated separately.  After further development, a decision review officer issued an October 2009 decision granting service connection for post-concussive headaches as a residual of TBI.  A statement of the case (SOC) was issued and the Veteran filed a VA Form 9 (Appeal to the Board of Veterans' Appeals) in November 2009.  Certified on appeal to the Board were the issues of service connection for hearing loss, a higher evaluation for tinnitus, and a higher evaluation for post-concussive headaches.

On April 7, 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge.  (A transcript of that hearing is of record.)  At the hearing, the Veteran indicated that he desired to withdraw his appeal regarding a claim for a higher evaluation for tinnitus.  Therefore, the Board finds that the appeal of that claim has been withdrawn.  See 38 C.F.R. § 20.204 (2010).  

The Veteran claims that he has other disabilities as a result of traumatic brain injury, including cognitive difficulties causing memory loss and problems with concentration.  Such issues have not been addressed by the RO.  They are therefore referred to the agency of original jurisdiction (AOJ) for action.

(The decision below addresses the Veteran's claim of service connection for hearing loss.  The issue of entitlement to an initial compensable evaluation for post-concussive headaches is addressed in the remand that follows the Board's decision.)


FINDING OF FACT

The evidence of record does not establish a current hearing impairment as defined by VA.


CONCLUSION OF LAW

The Veteran does not have a hearing loss disability for VA compensation purposes.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.304, 3.385 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Service Connection

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).  In addition, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Further, if a veteran is determined to have served in combat, and an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2010). "Satisfactory evidence" is credible evidence, and such evidence may be rebutted only by clear and convincing evidence to the contrary.  38 U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389, 392 (1996); 38 C.F.R. § 3.304(d).  "However, the provisions of section 1154(b) do not provide a substitute for medical-nexus evidence."  Clyburn v. West, 12 Vet. App. 296, 303 (1999).  Rather, section 1154(b) serves only to relax the evidentiary burden to establish incurrence of a disease or injury in service.  Id.

In this case, the Veteran's DD 214 reflects that he was awarded the Combat Action Ribbon (CAR) and that he received hostile fire pay from March 2007 to October 2007 for service in Iraq.  The Board thus finds that the Veteran is considered a combat Veteran.

For purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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 (2010).

In December 2008, the Veteran applied for VA disability compensation seeking service connection for hearing loss.  During his April 2010 hearing, he testified that he first experienced hearing loss in service and was exposed to acoustic trauma from mortar fire, improvised explosive devices (IEDs), and a suicide bomber.  The Veteran indicated that he had had a hearing test during an October 2008 physical, which he reportedly failed.

The report of an August 2004 pre-enlistment examination included the results of an audiogram that recorded the Veteran's pure tone auditory thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
0
5
5
LEFT
0
0
0
0
0

In December 2004, the Veteran was afforded another audiogram for the purpose of establishing a baseline prior to initial duty in hazardous noise areas.  The Veteran's pure tone auditory thresholds were recorded as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
0
0
LEFT
5
0
0
0
5

Audiograms were again performed in April 2006 and November 2007, the results of which showed pure tone auditory thresholds, respectively, as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
-5
5
LEFT
10
0
0
-5
10





HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
5
10
LEFT
10
10
5
0
5

The Veteran's service treatment records (STRs) also contain a November 2007 post-deployment health assessment wherein the Veteran stated that he had reported to sick call for trouble hearing and was still bothered by hearing loss.  On a September 2008 report of medical history, he again indicated that he had occasional trouble hearing out of his right ear.  The Veteran stated that his hearing loss stemmed from an IED blast in September 2007.  The Board notes that although the Veteran reported having received a physical in October 2008, his STRs contain no report of any such examination conducted at that time.  Nor do they contain a separation examination report.  

In January 2009, the Veteran was afforded a VA audiology examination.  He reported in-service noise exposure from IED explosion and denied civilian noise exposure.  At that time, the Veteran's pure tone auditory thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
5
10
LEFT
10
10
5
10
10

A Maryland CNC Test resulted in speech recognition scores of 96 percent bilaterally.  

Thus, objective testing results from the January 2009 examination demonstrated that the Veteran did not have hearing impairment for VA purposes.  See 38 C.F.R. § 3.385.  Additionally, during his April 2010 hearing, the Veteran stated that the only post-service audiometric testing performed was during his January 2009 VA examination.  The Veteran did not indicate a decrease in his hearing since that time.  Thus, there is no indication in the record that the Veteran has since met the requirements of 38 C.F.R. § 3.385.

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability.  See 38 U.S.C.A. § 1110.  Hence, in the absence of evidence that the Veteran currently has hearing loss to an extent recognized as a disability under the governing regulation, there can be no award of service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores do not represent "impaired hearing" as defined by regulation.  Hensley v. Brown, 5 Vet. App. 155, 158 (1993) (citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992)).  Consequently, service connection for hearing loss is not warranted.

The Board also finds that there is no objective evidence that sensorineural hearing loss manifested to a compensable degree within one year of the Veteran's separation from military service.  As noted above, hearing impairment has not been shown. Consequently, service connection is not warranted for hearing loss on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.

As to the Veteran's assertion that he was told in October 2008 that he had failed a hearing test, the Board again notes that hearing loss for the purposes of VA benefits requires a certain level of hearing loss.  Thus, while the Veteran is certainly competent to report on what he was told, there is no indication that his level of diminished hearing satisfied the auditory threshold requirements of 38 C.F.R. § 3.385.  Indeed, even the November 2007 audiogram performed subsequent the Veteran's reported acoustic trauma from an IED explosion revealed a normal level of hearing.  The Board does not doubt the veracity of the Veteran's statements regarding his diminished hearing.  However, as the objective evidence of record fails to reveal a level of hearing loss sufficient to be considered a disability for VA compensation purposes, the Board can find no basis upon which to award service connection.  See Hensley, supra.  

II.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2010)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

(The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.  See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).  The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.  The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim.  See 38 C.F.R. § 3.159(b)(1).)

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The RO received the Veteran's claim of service connection for, among other things, hearing loss in December 2008.  That same month, the RO sent to him a letter notifying him of the evidence required to substantiate that claim.  The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency.  The RO further advised the Veteran on the types of evidence he could submit that would support his claim of service connection, such as statements from military medical personnel, evidence of medical treatment since service, employment physical examination reports, and statements by persons who knew of the Veteran's disability.  It further included the notice elements required by Dingess for how VA determines disability ratings and effective dates.  

The Veteran has not disputed the contents of the VCAA notice in this case.  Further, the Board finds that the December 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claims.  Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.

Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran.  All available evidence pertaining to the Veteran's claims has been obtained.  The evidence includes his STRs, VA examination reports, and private medical evidence, and lay statements from the Veteran, to include his April 2010 hearing testimony.  

The Board notes that in January 2009, a finding of unavailability was made with regard to the Veteran's STRs.  Subsequent to the finding, however, the Veteran's STRs were received by the agency of original jurisdiction (AOJ).  As stated above, the Veteran's STRs do not contain the above-referenced October 2008 physical examination report or a separation examination report.  The Board has considered whether a remand is required to attempt to obtain these seemingly outstanding records.  However, as explained above, because the January 2009 audiogram, performed five weeks after the Veteran's separation from service does not demonstrate hearing loss for VA compensation purposes, the Board finds that a remand for additional service records is not warranted, as the evidence does not demonstrate a current disability at any point since the Veteran filed his claim in December 2008.  

Further, in January 2009, the Veteran was afforded a VA audiology examination.  The VA audiologist considered the Veteran's assertions regarding in-service noise exposure and conducted the appropriate hearing tests.  The VA audiologist determined that the Veteran presented with normal hearing bilaterally.  There is no indication that the testing performed was in any way erroneous.  The Board thus concludes the January 2009 audiology examination was adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Cox v. Nicholson, 20 Vet. App. 563 (2007).  



ORDER

Service connection for hearing loss is denied.  


REMAND

Regarding the issue of entitlement to an initial compensable rating for post-concussive headaches, the Board finds that a remand is necessary for further development.  

Under 38 U.S.C.A § 5103A, VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary."  38 U.S.C.A § 5103A(a)(1) (West 2002); see 38 C.F.R. § 3.159(c) (2010) (obligating VA to obtain relevant records from Federal department or agency).  This duty to assist includes making "reasonable efforts to obtain relevant records (including private records)," as long as the claimant "adequately identifies" those records and authorizes the Secretary to obtain them.  38 U.S.C.A § 5103A(b)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005).

During his April 2010 hearing, the Veteran stated that he had an appointment at the Omaha, Nebraska, VA medical center (VAMC) scheduled for May 7, 2010.  The Veteran indicated that one purpose of that appointment was to discuss with an examiner the severity of his headaches to determine whether he should be prescribed a medication to treat them.  As records pertaining to treatment for the specific disability for which the Veteran seeks a higher evaluation are relevant records that may help in substantiating his claim, a remand is necessary for the AOJ to ensure that these records are associated with the claims folder and considered in connection with the Veteran's claim.  See 38 U.S.C.A § 5103A(b)(1); Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed.Cir.2010) (defining relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim."); Loving, supra.  

VA's duty to assist also includes the duty to provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim."  38 U.S.C.A. § 5103A(d).  The Board notes that the Veteran was afforded a VA examination for TBI in January 2009.  At that time, the Veteran complained of weekly headaches.  It was noted that the Veteran's headaches were mild and generalized, with no precipitating or aggravating factors.  The Veteran also denied incapacitating headaches.  

During his April 2010 hearing, the Veteran reported approximately 12 headaches a month, with incapacitating headaches on a weekly basis.  He reported a variety of symptoms potentially related to his headaches, but indicated that those symptoms could also be a result of his posttraumatic stress disorder.  He indicated that his headaches had begun in 2007 and stated that they had become less frequent since that time.  (The Veteran also suggested that he could also just be getting used to the headaches.)  

In light of the Veteran's report of increased severity of symptoms since his last VA examination, but decreased frequency since service, the Board finds that a remand of the Veteran's claim for an initial compensable rating for post-concussive headaches is also necessary for the Veteran to be scheduled for another VA examination to determine the current severity of his disability.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007).  On remand, the VA examiner should be asked to assess the current severity of the Veteran's post-concussive headaches, to include a determination of whether the Veteran experiences characteristic prostrating attacks, as contemplated by 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100.

Accordingly, the case is REMANDED to the AOJ for the following action:

1.  The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his headaches since service.  The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder.

2.  The AOJ must contact the Omaha, Nebraska, VAMC for outstanding treatment records pertaining to the Veteran, especially any record prepared on or about May 7, 2010.  

3.  Schedule the Veteran for a VA examination in connection with his claim for an initial compensable rating for post-concussive headaches.  
(This should be done after action requested in paragraphs 1 and 2 above is completed.)  The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination.  (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal.  See 38 C.F.R. § 3.655 (2010).)

The examiner should be asked to provide a complete assessment of the severity of the Veteran's service-connected headaches.  All studies, tests and evaluations should be performed as deemed necessary by the examiner.  The results of any testing must be included in the examination report.

The examiner should determine, through review of records and examination of the Veteran, to include consideration of his lay statements, how often the Veteran has characteristic prostrating attacks.  The frequency of non-prostrating headaches should also be documented.  The examiner should provide reasoning for distinguishing between prostrating and non-prostrating headaches.  

4.  The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request.  If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate.

5.  After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issues on appeal.  If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs