Citation Nr: 1614288
Decision Date: 04/07/16	Archive Date: 05/26/16

DOCKET NO. 10-29 143      DATE  APR 07 2016


On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi



THE ISSUES

1. Entitlement to service connection for a right ear hearing loss disability.

2. Entitlement to service connection for a low back disability, to include degenerative disc disease and osteoarthritis.

3. Entitlement to a disability rating in excess of 20 percent for femoral cutaneous nerve neuropathy, right lower extremity.

4. Entitlement to a disability rating in excess of 20 percent for femoral cutaneous nerve neuropathy, left lower extremity.

5. Entitlement to a disability rating in excess of 0 percent for status post bilateral inguinal hemioplasty.

6. Entitlement to a disability rating in excess of 0 percent for scars associated with status post bilateral inguinal hemioplasty.

7. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:   Mississippi Veterans Affairs Board



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

G.R. Waddington, Associate Counsel



INTRODUCTION

The Veteran served in the Air National Guard from January 1978 to May 1979 and in the Mississippi Army National Guard from October 1979 to March 1989.

This matter is on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

The Veteran testified before the undersigned at a July 2011 video-conference hearing.  A hearing transcript is in the claims file.  In April 2013, the Board remanded the issues on appeal for further development.

This appeal was processed using the Virtual VA paperless claims processing system.  Any future consideration of this case should account for the electronic record.

The issues of entitlement to service connection for a low back disability; entitlement to a disability rating in excess of 20 percent for femoral cutaneous nerve
neuropathy, right lower extremity; entitlement to a disability rating in excess of 20 percent for femoral cutaneous nerve neuropathy, left lower extremity; entitlement to a disability rating in excess of 0 percent for status post bilateral inguinal hemioplasty; entitlement to a disability rating in excess of 0 percent for scars associated with status post bilateral inguinal hemioplasty; and entitlement to a
TDIU are addressed in the REMAND section of this decision and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran does not currently have right ear hearing loss for VA purposes.



CONCLUSION OF LAW

The criteria for entitlement to service connection for a right ear hearing loss disability have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015).

The Veteran was notified of the elements of service connection and of his and VA' s respective responsibilities for obtaining relevant records and other evidence in support of his claim.  See April 2008 Correspondence.  The duty to notify is satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002).

VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records (STRs) and other pertinent records.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The claims file contains the Veteran's STRs, VA medical records (VAMRs), private medical records (PMRs), and records from the Social Security Administration (SSA). See July 2009 Formal Finding of Unavailability.
In addition, as discussed in point B below, the RO conducted an extensive search to identify all of the Veteran's service personnel and treatment records.  The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); Mclendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

The July 2013 VA audiological examination report is sufficient to decide the Veteran's claim.  The examiner reviewed the electronic claims file, performed audiological tests, and provided findings and/or opinions in sufficient detail to enable the Board to make a fully informed decision. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion").

VA has satisfied its duties to notify and assist and the Veteran has had ample opportunity to participate in the development of his claim.

Further, in April 2013 the Board remanded this appeal for additional development, to include a VA examination.  See April 2013 Board Decision.  Pursuant to the Board's remand directives, the RO attempted to obtain (for a second time) all STRs and military personnel records related to the Veteran's service in the Air National Guard and Mississippi Army National Guard.  The RO obtained outstanding medical records from VAMC Jackson, private medical records from Dr. K.A., and SSA records related to a 2011 claim for disability.  The RO also provided a VA examination with an opinion and readjudicated the claim on appeal.  See October 2013 Supplemental Statement of the Case (SSOC); see also June 2013 Memorandum (stating that the Mississippi Air National Guard does "not have any medical records on file for" the Veteran); August 2013 General Report of Contact (informing the Veteran that VA was unable to obtain his STRs from the Mississippi Air National Guard); November 2013 Request for Expedited Processing (stating that the Veteran has no more evidence to submit in support of his claim).  The Board finds substantial compliance with the remand directives.  Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West., 13 Vet. App. 141, 147 (1999).

As noted above, the Veteran testified at a hearing before the undersigned in July 2011.  Under 38 C.F.R. § 3.103(c)(2) (2015), the hearing officer must fully explain the issues on appeal and suggest the submission of evidence that the claimant may have overlooked and that would be of advantage to the claimant's position.  Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010)

At the hearing, the Veteran had an opportunity to provide testimony in support of  his claim, facilitated by questioning from the undersigned.  The undersigned elicited testimony from the Veteran regarding the presence and etiology of the disability on appeal.  The Board also undertook additional development after the hearing was conducted, including obtaining additional medical records and arranging for a VA examination to determine whether a right ear hearing loss disorder was present.  See id. at 498-99 (finding that any deficiencies in discharging the hearing officer's duties under § 3.103(c)(2) were rendered harmless by otherwise developing the record).  Given this development, in addition to the Veteran's testimony at the hearing and the evidence in the claims file, the "clarity and completeness of the hearing record [is] intact: and there is no prejudicial error concerning the hearing officer's duties under § 3.103(c)(2).  See Bryant, 23 Vet. App. at 498 (holding that the rule of prejudicial error applies to compliance with the hearing officer's duties under § 3.103(c)(2)); see also Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009).


Service Connection

The Veteran asserts that his right ear hearing loss results from noise exposure during periods of active duty for training (ACDUTRA) during his National Guard service.  See April 2008 Claim; September 2009 NOD; July 2010 Substantive Appeal (VA Form 9).

To prevail on a service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

VA compensation may be awarded for a disability only if it existed on the date of application-it may not be awarded for a past disability.  Degmetich v. Brown, 8 Vet. App. 208, 211-212 (1995), aff d, 104 F.3d 1328, 1332 (Fed. Cir. 1997). But see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability requirement is satisfied if a claimant has the disability at the time during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Impaired hearing constitutes a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The threshold for normal hearing is from 0 to 20 dB; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be considered a disability eligible for service connection.  Id. at 159.

The record does not contain evidence that the Veteran currently has, or had at any point since filing his claim, right ear hearing loss for VA purposes.

The Veteran was afforded a VA audiological examination in July 2013.  His pure tone thresholds do not show that he has a current right ear hearing loss disability. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 159.  Specifically, the July 2013 VA audiological examination report shows that the Veteran had pure tone thresholds, in dB, as follows:


HERTZRIGHT
500
15 	

1000
10
 2000
15
 3000
30 
4000
35
The Veteran's auditory threshold is below 40 dB at 500, 1000, 2000, 3000, and 4000 Hz and only the auditory thresholds at 3000 and 4000 Hz exceed 26 dB.  In addition, the speech recognition score for the Veteran's right ear was 100 percent (Maryland CNC Test) and so exceeded the 94 percent threshold required to establish a hearing disability.  38 C.F.R. § 3.385.  Thus, although the July 2013 VA examiner diagnosed the Veteran has having sensorineural hearing loss of the right ear, the Veteran had normal hearing for VA purposes.

The STRs generally align with the VA examiner's finding that the Veteran does not have a current right ear hearing loss disability or that he was treated for right ear hearing loss in service.  The October 1979 examination found no hearing problems and measured the Veteran's pure tone thresholds at below 10 dB.  At the time, the Veteran denied any problems with his right ear and with his hearing generally. October 1979 Report of Medical History.  Audiological tests performed in February 1983 indicated pure tone thresholds of 30 dB in the right ear between 500 Hz and 4000 Hz; however, audiological tests performed in April 1985 show pure tone thresholds below 15 dBs between 500 and 4000 Hz.  The Veteran denied any hearing problems at the time of the February 1983 and April 1985 audiological examinations.  February  1983 and April 1985 Reports of Medical Examination and History.  Thus, the July 2013 VA examiner's findings are consistent with military audiological tests that also do not evidence a right ear hearing loss disability.  See also July 2010 SSA Examination Report (observing that the Veteran reported some hearing problems, but "appear[ed] to hear conversation fairly normally today").


The July 2013 VA examination findings also align with VA medical evidence that documents decreased hearing in the Veteran's right ear, but does not document a right ear hearing loss disability.  March 2015 VAMRs (noting decreased hearing); November 2011 VAMRs (noting mild to severe right ear hearing loss between 6000 and 8000 Hz).

The Veteran testified that he began having trouble hearing out of his right ear beginning in 1986 and that he underwent "several hearing tests  . . . in the military." July 2011 Hearing Transcript.  He also testified that he worked around military aircraft and that he "assumed that it [hearing loss] was just from some of the things I've gone through in training with the way I was with the grenades over the years." Id.  The Veteran stated that a medical provider has not attributed his right ear hearing loss to service.  Id.; see also September 2009 NOD, July 2010 Substantive Appeal (VA Form 9).

While the Veteran believes he currently has a right ear hearing loss disability for VA purposes, he is not competent to provide a diagnosis in this case.  The issue is medically complex and requires specialized knowledge and experience.  Jandreau
v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see  Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating the need for supporting medical evidence in claim for rheumatic heart disease).  There is no indication that the Veteran has the medical training to self-test his hearing for puretone thresholds or Maryland CNC speech recognition results that would reveal hearing loss for VA purposes under 38 C.F.R. § 3.385.

The preponderance of the evidence is against the claim. The first criteria for establishing service connection has not been met-the Veteran does not have a current right ear hearing loss disability, see July 2013 VA Examination-and service connection for a right ear hearing loss disability is denied. See 38 C.F.R.
§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (In the absence of proof of a present disability there can be no valid claim.).


ORDER

Service connection for a right ear hearing loss disability is denied .



REMAND

The Veteran's claim of entitlement to service connection for a low back disability must be remanded for further development, to include providing a new VA opinion.

The Veteran's service connection claim must be remanded to ensure compliance with the Board's April 2013 remand directives and that VA provide the Veteran with an adequate VA examination.  Stegall v. West, 11 Vet. App. 268 (1998), D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (requiring substantial compliance with Board remand directives); see also See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

In April 2013, the Board remanded the claim of entitlement to service connection for a low back disability for a new VA examination.  The Board directed the VA examiner to take "into consideration the documented medical history as well as his [the Veteran's] competent assertions of falling during service."  Although the examiner noted the Veteran's report of a low back injury in service, he did not "consider" the Veteran's statements when providing a supporting rationale.  The examiner assumed that the lack of evidence of an in-service injury undermined the Veteran's competent statements to the contrary: "Review of C-file . . . finds no documentation of back complaints . . . or treatment during active duty period" of a back problem.  Thus, the examiner relies on the absence of evidence to support his conclusion.	See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a VA examination was inadequate because the examiner failed to comment on the Veteran's report of an in-service injury and relied on the absence of evidence in the STRs to provide a negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence of record, but that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that lay statements regarding symptoms such as pain that are experienced on a first-hand basis constitute competent evidence); Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).  Thus, the April 2013 VA examination neither complies with the Board's remand instructions nor is adequate for the Board to decide the Veteran's claims.

In view of the foregoing, remand is necessary to obtain a new VA medical opinion, with supporting rationale, as to whether the Veteran's current low back disability relates to service.

Further, in an August 2014 rating decision the RO denied entitlement to a disability rating in excess of 20 percent for femoral cutaneous nerve neuropathy, right lower extremity; entitlement to a disability rating in excess of 20 percent for femoral cutaneous nerve neuropathy, left lower extremity; and entitlement to a disability rating in excess of 0 percent for status post bilateral inguinal hemioplasty with  stable scars.  The Veteran submitted a timely notice of disagreement with this decision in September 2014.  In March 2016, the RO awarded a separate 0 percent rating for the scars associated with the bilateral hernia repair, effective from January 25, 2016, and continued the 0 percent rating assigned under Diagnostic Code 7338 for status post bilateral inguinal hemioplasty.  The RO also denied entitlement to a total disability rating based on individual unemployability, which is a component of the increased rating claims.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).
Because the Veteran has not yet been provided with a statement of the case (SOC), remand of these claims is required.  See Manlincon v. West, 12 Vet. App. 238 (1999).


The case is REMANDED for the following actions:

1. Arrange to obtain the Veteran's VA treatment records (VAMR.s) dated from February 2016 forward.

2. Then, obtain a VA medical opinion as to whether the Veteran's low back disorder relates to service.  The entire claims file, to include a copy of this REMAND, must be provided to the examiner, who must note its review.

(a) The examiner must opine as to whether it is at least as likely as not (50% or greater probability) that any current low back disability had its clinical onset during active service or is related to any incident in service.

(b) For the purpose of providing the requested opinion, the examiner must presume that the Veteran  is competent to report both an  in-service in jury  and a history of back symptoms.

(c) Ifthe requested opinion cannot be made without resorting to speculation, the examiner must state this and explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided.

The examiner must provide a complete rationale for all opinions provided.  Such a rationale addresses any evidence of record that is contradictory to the examiner's findings and reconciles this evidence with the examiner's conclusions/opinions.   Absence of evidence alone is not sufficient to undermine the Veteran's competent reports of in-service back injury.

3. After the VA examination has been completed, review the medical report to ensure that it adequately responds to the above instructions.  Ifthe report is deficient in this regard, return the case to the VA examiner for further review and discussion.

4. Send the Veteran notice of his right to elect de novo review of the August 2014 rating decision by a Decision Review Officer (DRO), or to proceed with the traditional appeal process.  After the Veteran has responded to the notice informing him of his right to de novo review by a DRO, or after the time period for response has elapsed, issue a statement of the case (SOC) addressing the claims of entitlement to a disability rating in excess of 20 percent for femoral cutaneous nerve neuropathy, right lower extremity; entitlement to a disability rating in excess of 20 percent for femoral cutaneous nerve neuropathy, left lower extremity; entitlement to a disability rating in excess of 0 percent for status post bilateral inguinal hemioplasty; entitlement to a disability rating in excess of 0 percent for scars associated with status post bilateral inguinal hemioplasty; and entitlement to a TDIU.  Send copies of the SOC to the Veteran and his representative. Inform him that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board.

5. Finally, after the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the claim for service connection for a low back disorder.  Ifthe benefits sought are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review.

The Veteran 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).

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).


P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals