Citation Nr: 1633690	
Decision Date: 08/25/16    Archive Date: 08/31/16

DOCKET NO.  10-43 260	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for hearing loss of the left ear. 

2.  Entitlement to service connection for eustachian tube dysfunction of the left ear.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Sorathia, Associate Counsel





INTRODUCTION

The Veteran had active duty for training from September 1981 to March 1982.  He then had several years of service in the Minnesota National Guard until July 1987 and from April 1989 to June 1992.  He then served on active duty from August 2008 to June 2009, with service in Iraq from September 2008 to January 2009.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  

This case was before the Board in August 2015.  The Board remanded the service connection claims for muscle spasms and hearing loss of the left ear with eustachian tube dysfunction for additional development.  Following development conducted pursuant to the Board's August 2015 remand, the AOJ granted service connection for fasciculation (claimed as muscle spasms) in a January 2016 rating decision.  As this issue has been granted, it is no longer before the Board.  Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997).   

Pursuant to the August 2015 remand, outstanding VA treatment records were obtained and an additional VA examination was conducted.  Accordingly, the AOJ substantially complied with the Board's remand instructions and the Board can proceed to adjudicate the appeal.  Stegall v. West, 11 Vet. App. 268 (1998).       

The Board also discussed in the August 2015 remand that the Veteran requested to appear before a member of the Board in his October 2010 VA Form 9.  Subsequent to the October 2010 VA Form 9, the Veteran was afforded two Board hearings in March 2014 and May 2015.  These hearings addressed the issue of entitlement to service connection for an acquired psychiatric disorder.  Neither the Veteran nor his representative offered testimony on the issue of service connection for an ear disability.  In Scott v. McDonald, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."  789 F.3d 1375 (Fed. Cir. 2015).  In the instant case, the Veteran was afforded two Board hearings since he submitted his October 2010 VA Form 9 and he has not raised the issue of entitlement to service connection for an ear disability at either hearing.  In light of the Federal Circuit's holding in Scott, the Board can proceed to adjudicate the Veteran's service connection claim without remanding for a hearing as the Veteran has been afforded two Board hearings and has not raised this service connection claim.  

The Board has also recharacterized the service connection claim for hearing loss of the left ear with eustachian tube dysfunction as two separate service connection claims as the claims represent a hearing loss disability and an ear disability other than hearing loss.  

A June 2016 rating decision granted individual unemployability with an effective date of March 10, 2015.  Also in June 2016, the Veteran submitted a claim for an earlier effective date for individual unemployability on a VA Form 21-526EZ.  However, effective March 25, 2015, VA will only accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) as a notice of disagreement if it is submitted on a standardized form provided by VA (VA Form 21-0958) for the purpose of appealing the decision, in cases where such a form is provided.  See 38 C.F.R. § 20.201 (from March 24, 2015); also 79 Fed. Reg. 57698; VA Form 21-0958, "NOTICE OF DISAGREEMENT."  Because the new claim for an earlier effective date cannot constitute a valid notice of disagreement, the matter is not presently in appellate status before the Board and a remand for a statement of the case is not appropriate.  See 38 C.F.R. § 20.201(a) (as amended September 25, 2014); see also 38 C.F.R. § 19.9(c) (2015).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for eustachian tube dysfunction of the left ear is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT

The Veteran does not have hearing loss of the left ear for VA compensation purposes.  


CONCLUSION OF LAW

Service connection for hearing loss of the left ear is not warranted.  38 U.S.C.A. §§ 1110, 1131, 1154(a) (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.385, 4.85 (2015).   


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that he has hearing loss of the left ear that is related to service.  Specifically he states that his hearing loss is due to acoustic trauma in service, an in-service injury where his ear "popped" upon descent while in an airplane, or as a result of an ear disability.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  See October 2010 statement and April 2016 Informal Hearing Presentation.  	

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  

The presence of a current disability is a requirement to establish a service connection claim.  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  
With hearing loss claims, VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.  

Although the Veteran contends that he has hearing impairment of the left ear, his lay statements cannot be considered competent evidence sufficient to establish that his hearing acuity currently meets the definition of hearing loss disability set by law.  See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

The Veteran was afforded a VA audiological examination in June 2009.  Testing showed pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
LEFT
15
15
10
15
25

Speech recognition scores using Maryland CNC testing was 96 percent in the left ear.  The examiner stated that the Veteran had normal hearing of the left ear.  The Veteran did not have a hearing loss disability pursuant to 38 C.F.R § 3.385 in June 2009.  

An October 2009 VA treatment record notes that the Veteran's hearing was within normal limits.  An April 2013 VA treatment record states that there is no significant change in hearing since the October 2009 evaluation and that hearing is essentially within normal limits.  The April 2013 VA treatment record further states that the Veteran has normal hearing of the left ear from 250 Hertz to 8000 Hertz with excellent word understanding.  

An October 2014 VA treatment record notes normal hearing of the left ear from 250 Hertz to 3000 Hertz and mild sensorineural hearing loss at 4000 Hertz, with 96 percent speech recognition.  Although the October 2014 treatment record notes mild sensorineural hearing loss at 4000 Hertz, this is not sufficient to say that the Veteran has a current hearing loss disability pursuant to VA regulations.  Moreover, the treatment record does not include a controlled speech discrimination test (Maryland CNC) as is required for an evaluation for VA purposes.  38 C.F.R. § 4.85.  Thus, this notation of mild sensorineural hearing loss cannot alone constitute a hearing loss disability pursuant to 38 C.F.R. § 3.385.

In light of the indication of worsening hearing acuity, the Board remanded the claim in August 2015.  The Veteran was afforded a January 2016 VA examination.       Testing showed pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
LEFT
20
20
15
20
30

Speech recognition scores using Maryland CNC testing was 100 percent in the left ear.  Although the examiner stated that the Veteran has sensorineural hearing loss of the left ear, he does not meet the criteria for a hearing loss disability for VA compensation purposes.  38 C.F.R. § 3.385.

The Veteran's hearing acuity of the left ear has not met VA criteria for a finding of disability at any time during the appeal period.  As noted above, the competent and credible medical evidence of record reveals that the Veteran's audiometric thresholds are normal for VA purposes.  The Veteran has not provided medical evidence to the contrary establishing that he has a current hearing loss disability of the left ear pursuant to 38 C.F.R. § 3.385.

In light of the foregoing, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of hearing loss of the left ear that meets the criteria of 38 C.F.R. § 3.385.  Accordingly, service connection for hearing loss of the left ear cannot be granted.  



ORDER

Entitlement to service connection for hearing loss of the left ear is denied.  


REMAND

The Veteran contends that he has a left ear disability that had its onset in service, or is otherwise related to service.  Specifically, he contends that he experienced left ear pain upon descent while in an airplane during service.  He describes current symptoms of ear pain and a "popping" sensation.  His spouse states that the Veteran's skin will get hot to the touch when he has episodes of ear pain.  See December 2015 lay statement.      

A March 2009 service treatment record notes that the Veteran reported an earache.  The treatment record states that the discomfort the Veteran felt was probably inner ear pressure due to eustachian tube dysfunction in relation to his allergies.  An April 2009 report of medical history notes eustachian tube dysfunction and an April 2009 separation examination report marked the Veteran's ears and drums as both normal and abnormal.    

The Veteran separated from active duty service in June 2009 and was afforded a VA examination in July 2009.  The examination report notes left eustachian tube dysfunction.  

A July 2012 VA treatment record also notes eustachian tube dysfunction.  An October 2014 VA treatment record states that the Veteran does not have eustachian tube dysfunction.  Eustachian tube dysfunction remains on the Veteran's VA current problems list.  

The Veteran was afforded another VA examination in January 2016.  The examiner opined that the Veteran does not currently have a diagnosis of an ear disability, to include eustachian tube dysfunction.  The examiner cited to October 2014 and February 2015 VA treatment records that note normal ear examinations.  The examiner further opined that the cause of the ear pain stems from his temporomandibular joint dysfunction (TMJ) condition and includes referring pain into the ear.  The examiner states that "medical literature repeatedly shows people often mistake TMJ pain for an ear problem, such as an ear infection or eustachian tube dysfunction, when the ear is not the problem at all.      

The Board finds that an additional medical opinion is required in the instant case.  Clarification should be provided as to whether the examiner is stating that the March 2009 and April 2009 in-service and July 2009 post-service diagnosis of eustachian tube dysfunction is inaccurate, or rather that the Veteran simply does not currently have eustachian tube dysfunction.  The examiner should note that for VA compensation purposes, the current disability requirement is satisfied when a Veteran has a disability at the time a claim for VA disability compensation is filed (in the instant case in 2009) or during the pendency of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

If the examiner finds that the Veteran has a current left ear disability, the examiner should state whether the ear disability had its onset in service or is otherwise related to service.  The examiner should further state whether the ear disability is caused by or aggravated by his service-connected asthma with allergic rhinitis or service-connected left TMJ subluxation with self-reduction with bilateral myofascial pain syndrome.    

Accordingly, the case is REMANDED for the following action:

(Please note, 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 file VA treatment records dated since July 2016.  

2.  Afford the Veteran an additional opportunity to submit any other information that is not evidenced by the current record, to include records of any private treatment.  Associate any available records with the claims file.

3.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, onset, and etiology of his ear disorder.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

4.  Schedule the Veteran for a VA examination to determine the nature, onset, and etiology of any ear disability found to be present other than hearing loss and tinnitus. 

(A) The examiner should determine if the Veteran currently has a left ear disability other than hearing loss or tinnitus.  The examiner should specifically state whether the Veteran has a diagnosis of eustachian tube dysfunction.    

(B) After reviewing the January 2016 examination report and medical opinion, the examiner should provide clarification regarding the January 2016 report's finding that the Veteran did not have eustachian tube dysfunction and that eustachian tube dysfunction is often mistaken for a symptom of TMJ.  

The examiner should provide clarification as to whether the Veteran's March 2009 and April 2009 in-service and July 2009 post-service diagnosis of eustachian tube dysfunction is accurate.  

In providing this opinion, the examiner should also review the July 2012 VA treatment record which includes an assessment of eustachian tube dysfunction and the October 2014 VA treatment record which states that the Veteran does not have eustachian tube dysfunction, as well as the February 2015 VA treatment record.    

(C) Then, the examiner should opine as to whether the Veteran has a left ear disability other than hearing loss and tinnitus that had its onset in service, or is otherwise related to service. 

The examiner should consider the January 2009, March 2009, and April 2009 service treatment records and the July 2009 VA examination report.  

The examiner should also note that for VA compensation purposes, the current disability requirement is satisfied when a Veteran has a disability at the time a claim for VA disability compensation is filed (in the instant case in 2009) or during the pendency of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

(D) The examiner should also opine as to whether the Veteran has an ear disability that is caused by or aggravated by the Veteran's service-connected asthma with allergic rhinitis.  The examiner should review the March 2009 service treatment record which states that the discomfort the Veteran is feeling is probably inner ear pressure due to eustachian tube dysfunction in relation to his allergies.  

(E) The examiner should additionally opine as to whether the Veteran has an ear disability that is caused by or aggravated by the Veteran's service-connected left TMJ subluxation with self-reduction with bilateral myofascial pain syndrome.  The examiner should review the January 2016 medical opinion which states that people often mistake TMJ pain for an ear problem.  

5.  Then, the claim should be readjudicated.  If the benefit sought on appeal remains denied, the RO should issue the Veteran and his representative an appropriate Supplemental Statement of the Case and afford them appropriate time to respond.  Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.    

The Veteran 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 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).




______________________________________________
STEVEN D. REISS 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs