Citation Nr: 1530034 Decision Date: 07/14/15 Archive Date: 07/21/15 DOCKET NO. 12-30 781A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left shoulder injury. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claims. The Veteran filed a notice of disagreement dated in September 2011 and the RO issued a statement of the case dated in November 2012. The Veteran submitted his substantive appeal in November 2012. In a November 2012 statement, the Veteran indicated that he wished to testify at a videoconference hearing before the Board. In a written statement received on March 21, 2013, the Veteran withdrew his request for a Board hearing. See 38 C.F.R. § 20.704. In December 2014 and April 2015 statements, the Veteran claimed entitlement to service connection for bilateral hips and knees, and an increased rating for his service-connected testicle disorder. These issues are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). In addition to the paper claims folder, the appeal includes documents stored electronically in the Veterans Benefits Management System (VBMS) and Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for left shoulder and hypertension are REMANDED to the agency of original jurisdiction (AOJ); and are discussed in the REMAND portion of this decision. FINDING OF FACT The competent evidence does not show that the Veteran has hearing loss for VA purposes. CONCLUSION OF LAW The criteria for an award of service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) In a September 2010 letter, the RO satisfied its duty to notify the Veteran under the VCAA as codified at 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2014). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2014). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2014). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was also afforded a VA examination in connection with the claim decided herein that fully addresses the criteria for deciding the claim. In this regard, the Board notes that the Veteran's treatment records indicate that he is in receipt of disability benefits from the Social Security Administration. However, while the Veteran has been found by the Social Security Administration to be unable to work due to medical disabilities, the Veteran has reported being disabled due to orthopedic issues. There is no indication that these benefits are based on hearing loss, especially in light of findings that the Veteran does not suffer a hearing loss disability for VA purposes. As such, no remand for association of these records is required prior to deciding the hearing loss claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). II. Service connection. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for listed chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under § 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Organic diseases of the nervous system are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. For 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 (2013). See also Hensley v. Brown, 5 Vet. App. 155 (1993). The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. The Veteran is competent to describe his difficulty hearing over the years, which he can perceive, but hearing loss for the purpose of VA disability compensation is not a condition capable of lay observation because it relies upon audiometric testing. Savage v. Gober, 10 Vet. App. 488 (1997), Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Here, the Board notes that some of the Veteran's service treatment records are unavailable. Unavailability of service treatment records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). In this case, the Veteran's service treatment records do not indicate findings of hearing loss for VA purposes. A review of the Veteran's post-service outpatient records also do not indicate that the Veteran has hearing loss. However, because the Veteran reported military noise exposure from tanks, gunfire and heavy equipment, the Veteran was afforded a VA examination dated in July 2011. Upon examination, the Veteran was not found to have hearing loss for VA purposes. Right ear testing indicated 10 decibels at 500 Hertz, 20 decibels at 1000 Hertz, 10 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, and 25 decibels at 4000 Hertz. The Maryland CNC speech recognition score was 96%. Left ear testing indicated 5 decibels at 500 Hertz, 20 decibels at 1000 Hertz, 10 decibels at 2000 Hertz, 25 decibels at 3000 Hertz, and 25 decibels at 4000 Hertz. The Maryland CNC speech recognition score was 96%. The examiner found that normal hearing sensitivity for VA purposes was evidenced bilaterally. There are no contrary findings in the record. Based on the foregoing, the Board finds that service connection for bilateral hearing loss is not warranted in this case. While the VA examiner did opine in an addendum opinion that hearing loss was likely related to military service, the hearing loss evidenced in the VA examination report does not rise to a level that is recognized as disabling for purposes of service connection. And as noted above, in the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). In so holding, the Board finds that the Veteran's report of decreased hearing acuity to be competent and credible evidence supportive of his claim. However, according to the applicable law, his hearing loss must reach a certain threshold of impairment. The Board notes that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C.A. § 1110. The Court has held that the term "disability," which is not specifically defined by statute, "should be construed to refer to impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself." Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the context of hearing loss disability, VA only considers decreased hearing acuity a "disability" when it "exceeds the specified levels" set forth in 38 C.F.R. § 3.385. The Court has upheld VA's determination to limit the definition of a hearing loss "disability" under 38 C.F.R. § 3.385 to a level which would affect a veteran's earning capacity. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). To the extent that the Veteran believes that he meets the regulatory definition of right and/or left ear hearing loss disability under 38 C.F.R. § 3.385, the Board places greater probative weight to the audiometric findings and word recognition test results of record which measure his hearing acuity with greater precision than his perception of decreased hearing acuity. In summary, the preponderance of the competent and probative evidence indicates the Veteran does not suffer from bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). In light of the VA examiner's opinion that the Veteran's tinnitus is due to military noise exposure, the Veteran is encouraged to refile his claim at a later point when he perceives a worsening of his right and/or left ear hearing acuity, or when an audiology examination returns findings that would meet the definition of disability under 38 C.F.R. § 3.385. ORDER Service connection for bilateral hearing loss is denied. REMAND A review of the Veteran's VA outpatient records indicates that he is receipt of disability benefits from the Social Security Administration. These records may be relevant to the Veteran's shoulder and hypertension claims. The Veteran's claims file, however, does not contain records related to this award. This matter should therefore be remanded and records related to such award should be associated with the Veteran's claims file. 38 C.F.R. § 3.159. See also 38 C.F.R. § 3.159(c)(2) (when attempting to obtain records in the custody of a Federal department or agency, including the Social Security Administration, VA must make as many requests as are necessary to obtain relevant records; VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile). With respect to the left shoulder claim, the Board notes that a Veteran is presumed to be in sound condition upon entry into service except as to injuries or diseases noted during his entrance medical examination. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). To rebut this presumption, VA must show by clear and unmistakable evidence both that the injury or disease in question existed prior to service and that it was not aggravated by service. Id.; see also VAOPGCPREC 3-03 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Monroe v. Brown, 4 Vet. App. 513 (1993); Green v. Derwinski, 1 Vet. App. 320 (1991). VA may show a lack of aggravation by establishing that there was no increase in disability during service or that the increase was due to the natural progression of the preexisting condition. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Temporary or intermittent flare-ups of a preexisting injury or disease do not constitute an increase in disability unless the underlying injury or disease, as contrasted with symptoms, has worsened. Beverly v. Brown, 9 Vet. App. 402 (1996); Jensen v. Brown, 4 Vet. App. 304 (1993); Green, 1 Vet. App. at 320; Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Board also notes that a review of the Veteran's service treatment records indicates that the Veteran's enlistment examination, among other records, is missing. As such, there is a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). In this case, the evidence indicates that the Veteran injured his shoulder prior to military service. In a June 2011 VA joints examination, the examiner found that the left shoulder was not permanently aggravated while on active duty. However, there was no opinion offered regarding whether this disorder clearly and unmistakably both preexisted and was not aggravated by military service. As such, the opinion is insufficient based on the criteria noted above. A remand for a clarifying opinion is therefore warranted. In addition, the Veteran has claimed hypertension due to service. He claims that he was diagnosed in service. The Veteran is noted to have reported this on a medical history report dated in March 1988. The Veteran has not been afforded a VA examination in connection with this claim. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Upon remand, the Veteran's VA treatment records should be updated. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claims that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the claims folder all relevant records of the Veteran's VA treatment since November 2012. The RO is requested to confirm for the record that there are no additional VA treatment records existing prior to May 2005. 2. Request, directly from the SSA, complete copies of any disability determination(s) it has made concerning the Veteran, as well as copies of the medical records that served as the basis for any such decision(s). All attempts to fulfill this development must be documented in the claims file. If the search for any such records yields negative results, that fact should be clearly noted, with the RO either documenting for the file that such records do not exist or that further efforts to obtain them would be futile, and the Veteran should be informed in writing. 3. Upon completion of the above, arrange for the Veteran's claims file to be reviewed by the examiner that conducted the June 2011 examination, if available. The examiner should review all evidence of record and should provide an addendum report as to the nature and etiology of the Veteran's left shoulder disability and hypertension. If any further testing or diagnostic studies are required prior to offering such opinions, they should be scheduled. If the June 2011 VA examiner is not available, the Veteran should be scheduled for another VA examination concerning these questions. (a) Does the Veteran have hypertension? If so, did hypertension have its onset in service or within one year of active military service? Was hypertension otherwise caused or aggravated by active military service? In providing an opinion on this question, the VA examiner is requested to consider a November 2014 statement from the Veteran's spouse describing the Veteran's symptoms of headaches, stumbling and dizziness six months after service discharge demonstrated the manifestation of hypertension. (b) With respect to the Veteran's left shoulder, the examiner should opine regarding whether (i) it is clear and unmistakable (e.g., highest degree of medical certainty) that such disability preexisted active duty service, and (ii) it is clear and unmistakable (e.g., highest degree of medical certainty) that such disability was not aggravated beyond the normal progress of the disorder during or as a result of active service. If the answer to either of the above is "no," did the left shoulder disability have its onset in service or within one year of active military service? Was the left shoulder disability otherwise caused or aggravated by active military service? Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. In providing an opinion on this question, the VA examiner is requested to consider statements from the spouse and brother of the Veteran, received in November 2014, describing his pre-service and post-service symptoms and limitations. A complete rationale for all opinions is requested. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. Thereafter, readjudicate the Veteran's claims on appeal. If the claims remain denied, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate time for response. 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. The law requires that all claims that are 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 2014). _________________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014). Department of Veterans Affairs