Citation Nr: 1317481 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 07-16 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for a left eye disorder, to include post surgery scar. 3. Entitlement to service connection for a low back disorder, to include as secondary to service-connected disease or injury. REPRESENTATION Appellant represented by Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from February 1998 to July 1998, January 2002 to December 2002, and March 2003 to August 2003. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a September 2006 rating decision of the VA Regional Office in Roanoke, Virginia, that among other things, denied entitlement to service connection for bilateral hearing loss, an eye disorder, to include post surgery scar, and a low back disorder. The Veteran was afforded a hearing in May 2010 in Washington, DC before a Veterans Law Judge who subsequently retired from the Board. The transcript is of record. The case was remanded for further development by Board decision in July 2010. VA laws and regulations require that the Veterans Law Judge who conducts a hearing must also participate in the final determination of the claim. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Since the Veterans Law Judge who convened the 2010 hearing is no longer available, the Veteran was offered the opportunity to appear for another hearing. The appellant responded affirmatively and a hearing was scheduled in March 2013. However, in a February 2013 letter, he wrote to advise that he no longer wanted a hearing. As such, the hearing request is withdrawn. The Board will, of course, consider the testimony and any evidence presented at the May 2010 proceeding. The case was remanded for further development in July 2010. By rating action dated in April 2012, other issues previously on appeal of service connection for posttraumatic stress disorder, right shoulder disability, a left knee disorder, and tinnitus were granted. Service connection for a right knee disorder was established by rating decision in August 2012. These are full grants of those benefits sought on appeal and they are no longer for appellate consideration. Following a review of the record, the issues of entitlement to service connection for a left eye disorder, to include post surgery scar, and a low back disorder, to include as secondary to a service-connected disease or injury, 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. FINDINGS OF FACT 1. Noise exposure is consistent with the Veteran's duties in service. 2. The Veteran does not have a bilateral hearing loss disability as that term is defined by VA regulation. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been so incurred. 38 C.F.R. §§ 1101, 1110, 1112, 1154, 5103, 5107 (West 2002 & Supp. 2012);38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claim of entitlement to service connection for bilateral hearing loss disability. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in October 2005 and March 2006 of the information and evidence needed to substantiate and complete the claim. The claims were readjudicated in an August 2012 supplemental statement of the case. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim and affording a VA examination. The Veteran was scheduled for a second hearing before a Member of the Board but canceled his appearance. The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claim is ready to be considered on the merits. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases, such as a sensorineural hearing loss, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. 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, 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Factual Background The Veteran's DD Forms 214 reflect that he served as a Marine rifleman, and had received specialized training as a rifle range coach. On examination in October 1997 for enlistment, an audiogram was obtained that showed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 00 05 00 05 00 LEFT 00 00 00 05 00 Audiograms in February and June 1998 were within normal limits. On the Report of Medical History at separation from service in July 2003, the appellant reported that he had not always used hearing protection and had trouble hearing in his right ear. An audiogram revealed pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 00 00 00 LEFT 20 25 20 10 15 The Veteran filed claims in September 2005 for compensation that included service connection for bilateral hearing loss. He presented testimony on personal hearing in May 2010 to the effect that he began noticing hearing loss on active duty in Iraq, and that hearing acuity had diminished since leaving service. Pursuant to the Board's February 2010 remand, the appellant was afforded a VA audiology examination in August 2010. The examiner indicated that the claims folder was reviewed. The Veteran described military noise exposure that was consistent with the duties of a Marine rifleman. Post-service noise exposure included target practice in his job with a Federal law enforcement office. He reported using double hearing protection on the shooting range. An audiometric evaluation revealed the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 10 10 LEFT 05 00 10 05 10 Speech discrimination was 100 percent in each ear. The assessment was normal hearing bilaterally. Legal Analysis In this case, exposure to noise is consistent with the circumstances of the Veteran's service. See 38 U.S.C.A. § 1154(a) (West 2002). Accordingly, in-service exposure to noise is conceded. However, this does not by itself provide for grant of service connection. Rather, the evidence must demonstrate that the Veteran has bilateral hearing loss disability, as that term is defined by 38 C.F.R. § 3.385, that is related to service. After reviewing the evidence in its entirety, the Board concludes that service connection for bilateral hearing loss disability is not warranted. The evidence shows that despite military duties and circumstances which did cause the Veteran to be exposed to noise, and while the appellant reported some right ear impairment at service discharge, neither service nor post service records are indicative of a hearing loss disability as that term is defined by VA regulation. In the case of a hearing loss, VA has established a medical standard by which this disability may be objectively demonstrated. See 38 C.F.R. § 3.385. The reference audiograms afforded the Veteran during service, to include at separation, indicate that there was some degree of threshold shift, but that he did not meet the criteria to establish hearing loss disability for VA compensation purposes. Id. Therefore, the most competent and probative clinical evidence reflects that the Veteran does not have hearing loss disability as that term is defined by VA regulations. The law requires that to grant service connection the evidence must establish that the claimant currently have a disability for which service connection is sought. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress specifically limits entitlement to service connection to disease or injury that has resulted in a disability. That is not demonstrated in this case. The Board must also consider whether, as a layperson, the Veteran is competent to render a diagnosis on this matter. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Significantly, however, while the appellant is competent to report trouble hearing, a clinical professional has the greater skill in determining whether he has a hearing loss disability as that term is defined by 38 C.F.R. § 3.385. VA regulations require specific evidence diagnosing the claimed disability, and the appellant's self-assessment is of far less probative value. 38 C.F.R. § 3.304. The Board points out that there is no probative evidence in the record showing hearing loss disability in accordance with 38 C.F.R. § 3.385. Therefore, to the extent that the appellant reports that he has hearing impairment, his statements, even when accepted as true, do not establish the presence of a disability for VA purposes. Therefore, service connection for bilateral hearing loss disability is not warranted. Under the circumstances, the Board concludes that the preponderance of the evidence is against entitlement to service connection for a bilateral hearing loss disability. The claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. REMAND The Veteran asserts, and service treatment records support the fact, that he had surgery for a growth above the left eyebrow. In April 2007, a cutaneous horn was excised from the left brow. In this regard, the record reflects that following the July 2010 remand, the Veteran was scheduled for VA skin and eye examinations, but it appears there was some confusion surrounding the execution of such, to include whether he withdrew the claim and subsequent scheduling. The examinations were not performed. The Veteran and his representative have clarified that the appellant did not withdraw his claim and that he still desired that these examinations be conducted. See August 2012 Report of Contact. As such, the appellant should be scheduled for current eye and skin examinations as previously indicated. The Veteran was afforded an orthopedic examination in August 2010 and complained that he had had low back pain since carrying heavy equipment and running in service. He related that his symptoms were becoming progressively worse, and claimed daily and radiating pain with flare-ups. Following examination, the assessment was a chronic lumbar strain that the examiner determined was less likely than not related to service. In the April 2012 Post Remand Brief, the representative points out that service connection is now in effect for bilateral knee disability. Applicable law provides that a disability that is proximately due to, the result of, or permanently aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012). Hence, the representative argues that the question of whether a low back disorder is secondary to or aggravated by the service connected knee disorders is before the Board. At the time of the August 2010 VA examination, service connection was not in effect for the knees and examiner did not proffer any opinion in this regard. This theory of derivative entitlement must be addressed concomitant with the back claim that has already been developed for appellate consideration. VA is required to consider all issues reasonably raised by a veteran's statements and evidence. See EF v. Derwinski, 1 Vet.App. 324, 326 (1991). As indicated above, the Veteran has not had a VA examination that addresses whether a back disorder is secondary to a service connected disorder. As such, the record is not sufficiently developed in this regard and another VA examination is indicated. The Board is prohibited from making conclusions based on its own medical judgment. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Accordingly, the Veteran should be afforded another VA examination, to include a clinical opinion that addresses the cited deficiencies. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he identify any records pertaining to treatment for any left eye and/or low back disorder that have not been previously submitted. Any records obtained must be associated with the Veteran's claims folder. If the RO cannot locate any identified records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must be given an opportunity to respond. 2. Thereafter, schedule the appellant for VA eye and skin examinations of the left eye and brow. The claims folder and access to Virtual VA must be made available to the examiner and clinical findings should be reported in detail. Following the examination the examiner must opine whether it is at least as likely as not that the Veteran has any left eye or scar residuals due to in-service surgery. A complete rationale must be provided for any opinion offered. 3. After completing instruction one, the appellant must be scheduled for a VA orthopedic examination by a physician to determine whether any diagnosed low back disorder is caused or aggravated by left and/or right knee disorders. The claims folder and access to Virtual VA must be made available to the examiner and clinical findings should be reported in detail. Following examination and review of the evidence, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed back disability is proximately due to or the result of service-connected right and/left knee disabilities. If not, the examiner must opine whether it is at least as likely as not that any diagnosed back disorder has been permanently aggravated to any degree by the service connected left and/or right knee disorders. The examination report must include a well-reasoned rationale for all opinions and conclusions reached. 4. The RO must ensure that the medical reports requested above comply with this remand and its instructions. If the reports are insufficient, or if a requested action is not taken or is deficient, it should be returned for correction. 5. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If a benefit is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs