Citation Nr: 1644533 Decision Date: 11/25/16 Archive Date: 12/02/16 DOCKET NO. 13-04 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected asthma. 3. Entitlement to service connection for sleep apnea, to include as secondary to service-connected asthma. 4. Entitlement to service connection for right knee disability. 5. Entitlement to service connection for a low back disability. 6. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected asthma. 7. Entitlement to service connection for left eye disability. 8. Entitlement to service connection for right shoulder condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Dominic Jones, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1982 to July 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2014. In February 2015, the Board reopened the previously denied claims of service connection for a right knee disability, a low back disability and asthma. The Board also remanded all of the claims on appeal for additional development and consideration. While the case was in remand status, in an October 2015 rating decision, the Appeals Management Center granted service connection for asthma. As the benefit sought was granted in full for that claim, the issue is no longer on appeal to the Board. The decision below addresses the hearing loss claim. The remaining claims on appeal are addressed in the remand section following the decision. FINDINGS OF FACT The Veteran does not have a present hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet.App. 545, 552 (2008). Although the Board is remanding the other claims for additional development, remand is not necessary for the hearing loss claim decided herein as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). I. Legal Principles Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Analysis The Veteran contends that he has hearing loss that is related to noise exposure during service. He was afforded a VA audiologic examination in June 2010. It revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 20 25 LEFT 25 25 25 25 25 The speech recognition in both ears was noted as 96 percent. The examiner noted that the testing revealed "normal hearing sensitivity for both ears." The examiner further noted that there was mild hearing loss at 8000 Hz for the left ear, but that this was not considered disabling for VA purposes. The Board finds that service connection for hearing loss is not warranted. This is so because an element of service connection is the existence of a present disability. VA defines disability due to impaired hearing under 38 C.F.R. § 3.385. Here, none of the auditory thresholds for the relevant frequencies were 40 decibels or greater. Similarly, none of the auditory thresholds were at least 26 decibels or greater. Additionally, the Veteran's speech recognition scores were greater than 94 percent in both ears. Thus, the VA examination does not reflect hearing loss for VA purposes. Other evidence also does not show hearing impairment for VA purposes. VA treatment records reflect negative hearing loss, and hearing grossly intact. In a September 2016 brief, the Veteran's representative noted that the June 1987 separation examination showed mild hearing loss. While "mild hearing loss" was written down for the right ear, the audiometric testing nevertheless did not show hearing loss for VA purposes at that time either. The Board notes that, in the September 2016 brief, the Veteran's representative also asserted that the Veteran was not provided a VA examination for hearing loss as directed by the February 2015 Board remand and requested such. However, the Board does not find that a remand for another VA examination is necessary. First, the Board did not request a VA examination in the remand; rather, other development was requested and completed, such as obtaining Social Security Administration (SSA) records. Next, as discussed, the Veteran has already been afforded a VA examination in connection with the hearing loss claim and there is no indication that the audiometric testing is not sufficient for deciding the claim. Lastly, there is no indication that the Veteran's hearing loss has worsened since that examination to warrant another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007). At the December 2014 hearing, the Veteran indicated that his hearing loss was the same as at the time of the VA examination or possibly even better since he stopped working in the loud casino environment. Thus, VA's duty to assist has been met with regard to a VA examination for this claim and there has been substantial compliance with the Board's remand. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Since no hearing loss for VA purposes has been shown, and there is no present hearing disability, service connection for hearing loss is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hearing loss is denied. REMAND Hypertension Claim The Veteran seeks service connection for hypertension. He has advanced two theories of entitlement for this disability. First, he contends that his hypertension may be due to his service-connected asthma. Specifically, he reports that because of his asthma, it is difficult for him to exercise, "which is a problem with my diabetes and blood pressure . . . ." See April 2009 statement. To this point, the Veteran submitted medical literature in August 2015 suggesting a link between asthma and cardiovascular and heart disease. In July 2015, a VA examiner opined that lack of exercise caused by asthma is not a medically recognized cause of hypertension. However, the Board notes that the medical literature submitted in August 2015 does in fact suggest a correlation between asthma and cardiovascular disease. As such, an addendum opinion is warranted to specifically address the medical literature the Veteran has referenced. Sleep Apnea Claim The Veteran seeks service connection for sleep apnea. The Veteran received a VA examination for sleep apnea in July 2015. The examiner opined that it was less likely than not his sleep apnea was related to service. The rationale provided was that there was no diagnosis or treatment for sleep apnea in the Veteran's service treatment records. Indeed, the examiner noted that the Veteran's sleep apnea was diagnosed in 2007. However, in August 2015 the Veteran submitted literature suggesting a connection between asthma and sleep apnea. The Board finds an addendum medical opinion is necessary to specifically address this medical literature and theory of causation. Right Knee Claim The Veteran contends that his current knee disability was incurred during a car accident in which he was involved during service. The Veteran received a VA examination for his knee in July 2015. The examiner opined that it was less likely than not the Veteran had a right knee condition related to service. The rationale provided was that there was no treatment for a chronic right knee condition in the Veteran's service treatment records. In a September 2016 statement, the Veteran's representative noted that on his June 1987 discharge examination, it was noted the Veteran had a bilateral knee condition and that the Veteran noted having a trick knee due to excessive running. Additionally, translated treatment records also reflect a knee injury. A January 1984 treatment note described the Veteran complaining of knee pain after his motor vehicle accident. In light of these facts, the Board finds the Veteran's July 2015 VA examination inadequate. This is so because the opinion did not fully address the complaints of knee pain noted in the Veteran's service treatment records. The Board finds a new VA examination is warranted to address the Veteran's in-service complaints of knee pain and knee problems noted on his discharge examination. Low Back Claim The Veteran contends that he injured his back during his motor vehicle accident during service. The Veteran received a VA examination for his back in July 2015. The examiner opined that it was less likely than not that the Veteran had a low back condition related to the service. The rationale provided was that there was no treatment for a chronic low back condition in service treatment records or within one year of discharge. However, in his December 2014 Board hearing, the Veteran reported that he went to a chiropractor in Las Vegas for treatment for his back. Additionally, the Veteran reported that he went to the Back Institute in Memphis, Tennessee for treatment for his back. To-date, the Board notes that these treatment records have not been associated with the claims file. The Boards finds these treatment records may be relevant to the Veteran's claim. As such, the RO should attempt to obtain such records, and an addendum opinion should be provided to opine on the etiology of the Veteran's low back condition. Diabetes Claim The Veteran has asserted two theories of entitlement to service connection for diabetes. The first theory is that his diabetes is caused by his service-connected asthma due to lack of exercise. A July 2015 VA examiner opined that diabetes was less likely than not due to asthma. The rationale was that lack of exercise caused by asthma was not a medically recognized cause of diabetes. However, the Veteran submitted medical literature in August 2015 indicating a link between oral steroids used to treat asthma, and blood sugar levels worsening diabetes. Since the Veteran has submitted this medical literature, the Board finds an addendum opinion is warranted to address whether any medication the Veteran may be using for his asthma may be aggravating his diabetes. Left Eye Claim In November 2007, the Veteran brought a claim for service connection for an eye disability. The Veteran was denied service connection for his claimed disability in April 2008 when the RO noted that the Veteran's VA treatment records were "absent any treatment or a diagnosis of an eye condition." Nonetheless, the Veteran is competent to report having trouble with his vision. Additionally, an October 1984 report of medical examination noted "amblyopia, OS uncorrectable." The Veteran's June 1987 report of medical examination at discharge also noted eye problems, but appears to suggest these existed prior to service. However, the Board notes that the Veteran's June 1981 report of medical examination at enlistment notes a normal clinical evaluation of his eyes. Since the evidence suggest that the Veteran's left eye disability may have preexisted service, and the Veteran has not yet received an examination for this condition, a VA examination is warranted to determine whether the Veteran's current left eye disability clearly and unmistakably preexisted service and, if so, whether there was clear and unmistakable evidence that this disability did not undergo a permanent increase beyond natural progress of the disorder during service. The Board notes, however, that refractive error is not a disability for which service connection may be granted. See 38 C.F.R. § 3.303(c). Right Shoulder Claim The Veteran contends that his right shoulder disability was incurred in service in approximately 1984 or 1985 while playing tennis. The Veteran recounted telling individuals about his shoulder, but recalled that he did not seek medical treatment for his shoulder while in service. In light of the Board's remand to obtain chiropractic medical records for the Veteran's back claim, the Board finds it appropriate to also remand this issue to seek an addendum opinion based on any newly-obtained medical records. In light of the remand, updated VA and private treatment records should also be obtained. Accordingly, these issues are REMANDED for the following actions: 1. Obtain any relevant updated VA treatment records. 2. Afford the Veteran the opportunity to submit or identify any additional private treatment records, to specifically include records from the Back Institute in Memphis, Tennessee, and any chiropractic records from providers in Las Vegas. Obtain any identified records with the use of the Veteran's authorization as necessary. 3. Obtain an addendum opinion from a VA examiner regarding the Veteran's hypertension. The entire claims file should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is caused, or aggravated by, his service-connected asthma. The examiner should specifically discuss the medical literature submitted by the Veteran in August 2015. A complete rationale must be provided for all opinions offered, and if an opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained in the examination report. 4. Obtain an addendum opinion from a VA examiner regarding the Veteran's sleep apnea. The entire claims file should be reviewed by the examiner The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea is caused, or aggravated by, his service-connected asthma. The examiner should specifically discuss the medical literature submitted by the Veteran in August 2015. A complete rationale must be provided for all opinions offered, and if an opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained in the examination report. 5. Obtain an addendum opinion from a VA examiner regarding the Veteran's right knee disability. The entire claims file should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right knee disability had its onset during, or is otherwise related to, his service. The examiner should specifically discuss the Veteran's June 1987 report of medical examination at discharge, and in-service complaints of knee problems. A complete rationale must be provided for all opinions offered, and if an opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained in the examination report. 6. Obtain an addendum opinion from a VA examiner regarding the Veteran's low back disability. The entire claims file should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's back disability had its onset during, or is otherwise related to, his service. A complete rationale must be provided for all opinions offered, and if an opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained in the examination report. 7. Obtain an addendum opinion from a VA examiner regarding the Veteran's diabetes. The entire claims file should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's diabetes is aggravated by his service-connected asthma or any medication used to treat the Veteran's asthma. The examiner should specifically discuss the medical literature submitted by the Veteran in August 2015 relating to blood sugar and oral steroid treatment for asthma. A complete rationale must be provided for all opinions offered, and if an opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained in the examination report. 8. Schedule the Veteran for a VA examination in connection with his claim for a left eye disability. The entire claims file should be reviewed by the examiner. The examiner should first identify any left eye disabilities and characterize them as refractive error in nature or not. The examiner is to provide an opinion as to whether any current left eye disability, that is not refractive error, clearly and unmistakably preexisted his military service (i.e., was it undebatably so?), and if so, whether there is clear and unmistakable evidence that this disability did not undergo a permanent increase beyond the natural progress of the disorder during military service (i.e., was it undebatably so?). If such is not the case, the reviewing examiner must presume that the Veteran was in sound condition with respect to the left eye disability when he entered service and provide an opinion as to whether any current left eye disability had its onset during, or is otherwise related to, his military service. A complete rationale must be provided for all opinions offered, and if an opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained in the examination report. 9. Obtain an addendum opinion from a VA examiner regarding the Veteran's right shoulder disability. The entire claims file should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right shoulder disability had its onset during, or is otherwise related to, his service. A complete rationale must be provided for all opinions offered, and if an opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained in the examination report. 10. Finally, readjudicate the issues remaining on appeal. If any of the benefits remain denied, issue a supplemental statement of the case and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs