Citation Nr: 1752025 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-02 696A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral shoulder conditions, to include osteoarthritis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1989 to February 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision (Virtual VA) of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. The April 2009 rating decision denied entitlement to service connection for bilateral hearing loss, bilateral shoulder conditions, residuals of an appendectomy, a lumbar spine condition, migraine headaches, a right knee condition, a right ankle condition, and chest pain. A notice of disagreement was received in November 2009; a statement of the case (SOC) was issued in January 2011; and a substantive appeal was received in February 2011. In the Veteran's February 2011 VA Form 9, he requested a travel Board hearing before a Veterans Law Judge. However, in a February 2015 communication, he withdrew his request for a Board hearing. 38 C.F.R. § 20.704(e) (2017). In January 2017, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for additional development. Subsequently, an April 2017 rating decision granted entitlement to service connection for residuals of an appendectomy, a lumbar spine condition, migraine headaches, a right knee condition, a right ankle condition, and chest pain. An April 2017 supplemental SOC continued the denial of the claims which remain on appeal, namely, the bilateral hearing loss and bilateral shoulder conditions. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. The issue of entitlement to service connection for bilateral shoulder conditions is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The probative evidence of record does not support a finding of a current hearing loss disability for VA purposes in either ear. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met by way of a November 2008 letter to the Veteran, sent prior to the issuance of the April 2009 rating decision on appeal. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The record reflects that VA has made reasonable efforts to obtain or assist in obtaining the records relevant to the matter decided herein. The pertinent evidence associated with the claims consists of the service treatment records (STRs), post-service private and VA treatment records, and the Veteran's statements. Here, VA has adequately discharged its duty to locate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession. The Veteran has not identified any outstanding records that have not been requested or obtained. The Board therefore finds that VA has met its duty to assist in obtaining the relevant records. The Board also finds there has been substantial compliance with the January 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication of further existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Thus, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). For the purposes of applying the laws administered by VA, impaired hearing is considered 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; Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (where the condition is simple, for example, a broken leg, but not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Bilateral hearing loss The Veteran asserts that he developed bilateral hearing loss as a result of his exposure to loud noise during his military service. The record reflects that he earned parachutist and air assault badges; he performed duties as a cannon artilleryman and paratrooper in addition to his primary specialty as a paralegal. Such duty as described by the Veteran and supported by his service records, would, by necessity, involve exposure to loud noise including artillery, small arms fire, and aircraft noise. Thus, the Veteran's exposure to hazardous noise levels is conceded in this case. 38 U.S.C. § 1154. STRs do not reflect that the Veteran underwent an audiogram upon enlistment in 1989. A reference audiogram in March 1992 showed normal auditory thresholds from 500-6000 Hertz (Hz) in the left ear and an elevated threshold at 2000 Hz in the right ear. These findings continued throughout service, with normal thresholds in the left ear and a shift in thresholds of the right ear at 4000 and 6000 Hz. In preparation for retirement, an audiological evaluation was conducted in July 2008. (STRs, pg. 136). Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 25 20 LEFT 15 15 20 20 10 In a concurrent Report of Medical History, the Veteran endorsed hearing loss or wearing a hearing aid. He stated that he had self-diagnosed hearing loss over the past two to three years. The clinical evaluation of his ears was normal upon separation. The Board notes that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as grounds for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 157. In December 2014, the Veteran was afforded a VA audiological examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 35 35 35 LEFT 25 25 35 35 40 Speech audiometry revealed speech recognition ability of 94 percent in each ear. The examiner diagnosed sensorineural hearing loss bilaterally. He opined that based on the Veteran's report of his military noise exposure, his military service record, and current findings, it was at least as likely as not that the bilateral hearing loss was related to service. The Veteran underwent further VA audiological examination in November 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 20 25 LEFT 15 15 25 20 25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 in the left ear. The examiner noted normal hearing bilaterally. As the examination was conducted in conjunction with a tinnitus claim, an opinion as to the etiology of any hearing loss was not provided. Further VA audiological examination was conducted in January 2017. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 25 15 LEFT 20 20 25 25 20 Speech audiometry revealed speech recognition ability of 94 percent in each ear. The resulting diagnosis was sensorineural hearing loss in the right ear and normal hearing in the left ear. The examiner stated that the right ear mild hearing loss at 6000Hz was present on several audiograms during military service with in-service significant threshold shifts consistent with military noise exposure. He could not explain the fluctuation present on the December 2014 audiogram results, which he cautioned should be interpreted cautiously as an outlier. Ultimately, he opined that right ear mild hearing loss at 6000Hz was at least as likely as not due to military noise exposure. He noted that while the right ear hearing was not clinically normal, the thresholds did not meet the criteria for disability under VA regulations. Regarding the left ear, the examiner reported that the audiogram showed normal hearing; he made no diagnosis of left ear hearing loss. He found that the left ear hearing was normal throughout military service based on the audiograms reviewed, and continued to be normal several years post-separation. Again, he could not explain the fluctuation present on the December 2014 audiogram results, which he cautioned should be interpreted cautiously as an outlier. After thorough consideration of the evidence, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted. The weight of the evidence does not support a finding of a hearing loss "disability" under the standards established by 38 C.F.R. § 3.385. The results of the December 2014 VA audiometric evaluation in the instant case are insufficient to establish that a hearing disability is present, as they are outweighed by the normal findings of three other audiological examinations since July 2008. Furthermore, the January 2017 examiner directly questioned the December 2014 findings, categorized them as outliers, and cautioned against reliance upon those measurements. Thus, the December 2014 audiological measurements are afforded little probative weight. The audiological evaluations conducted in July 2008, November 2015, and January 2017 generally reflect thresholds of 25 or less across the relevant spectrum, with speech recognition ability of 94 percent or higher. These findings do not meet the criteria of 38 C.F.R. § 3.385 for service connection for a hearing loss disability. The Board acknowledges that the Veteran is competent to report hearing-related symptoms he has experienced because this requires only personal knowledge, not medical expertise. See Layno v. Brown, 6 Vet. App. at 469. Indeed, his self-diagnosis of hearing loss upon separation is confirmed by later findings of mild sensorineural hearing loss upon VA examination. However, section 3.385, as relevant here, prohibits a finding of a hearing disability, where the requisite hearing status is not met. Hensley, 5 Vet. App. at 157. Thus, a diagnosis of hearing loss does not necessarily constitute a "presently existing disability," for which service connection may be granted. Degmetich v. Brown, 104 F.3d 1328, 1332, (Fed. Cir. 1997) (upholding the Secretary's interpretation of 38 U.S.C. § 1131 to require a presently existing disability, and concluding that such a requirement comports with the other provisions of the statute as a whole); see 38 U.S.C.A. § 1110 (to the same effect). If a veteran's hearing loss is not a "disability" under 38 C.F.R. § 3.385, there is no need for VA to determine whether the hearing loss is related to service because no entitlement to disability compensation exists if the hearing loss falls below the minimum standards. McKinney v. McDonald, 28 Vet. App. 15, 28 (2016). Absent probative or reliable evidence of a current hearing loss disability as defined in 38 C.F.R. § 3.385, service connection cannot be granted in the present case. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral hearing loss disability and it is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND While the Board regrets the delay, additional development is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for bilateral shoulder conditions. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Board notes that the Veteran has been diagnosed with acromioclavicular joint osteoarthritis bilaterally, as documented most recently in the January 2017 VA examination report. In September 1998, the Veteran reported left shoulder pain of seven days duration. He also reported shoulder pain in a June 2008 Report of Medical History. The claim was remanded in January 2017 to obtain a medical opinion regarding a nexus between the Veteran's current diagnoses and his in-service complaints. Subsequently, an examination was conducted in January 2017. After review of the claims file and physical examination, the VA examiner stated that the Veteran demonstrated significantly limited range of motion in both shoulder joints as well as significant guarding of both joints during testing, making it impossible to conduct a thorough bilateral shoulder examination. The examination report contains an opinion phrased in the form of a question: "The Veteran does not have a diagnosis of bilateral shoulder condition, to include (AC joint osteoarthritis), that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) left shoulder pain in June 2008 during service?" No explanation was provided other than the examiner's statement that a thorough examination was impossible. Based upon the examiner's statement that it was impossible to conduct a thorough examination, the form of the purported opinion, and the absence of a supporting rationale for the opinion, the Board finds that another request for a VA opinion is warranted. See Stegall, 11 Vet. App. at 271; Nieves- Rodriguez v. Peake, 22 Vet App 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). On remand, a thorough medical opinion must be obtained that contains a complete rationale, including discussion of the possible relationship between the in-service complaints and the current shoulder diagnoses. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion to the January 2017 VA examination for the purpose of determining the nature and etiology of the Veteran's bilateral shoulder conditions. The contents of the electronic claim files, to include a copy of this Remand, are to be made available to the designated examiner for review. The examiner is asked to review all pertinent records and evidence associated with the claims file, including lay statements proffered by the Veteran, and to offer comments and an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's current shoulder diagnoses are related to his service, to include in-service complaints of shoulder pain? The examiner must provide a complete rationale for any opinion expressed that is based on the examiner's clinical experience, medical expertise, and established medical principles. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably make clear the medical guidance in the study of this case. 2. Review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the above, and any other development deemed necessary, re-adjudicate, based on the entirety of the evidence, the issues of entitlement to service connection for bilateral shoulder conditions. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs