Citation Nr: 1752771	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  09-18 075	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to an initial disability rating for degenerative arthritis of the lumbar spine in excess of 10 percent prior to August 28, 2009, and in excess of 20 percent therefrom. 

3.  Entitlement to service connection for residuals of a whiplash injury to the neck and shoulders, to include as secondary to the service-connected lumbar spine degenerative arthritis. 

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission
WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Carole Kammel, Counsel


INTRODUCTION

The Veteran had service in the United States Air Force and the United States Air Force Reserve.  She had active duty service from August 1981 to August 1985, October 2001 to September 2002, and February 2003 to February 2004. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  By that rating action, the RO granted service connection for degenerative arthritis of the lumbar spine and assigned an initial 10 percent disability rating, effective October 31, 2007.  The RO also denied service connection for bilateral hearing loss and residuals of a whiplash injury to the neck and shoulders.  The Veteran appealed the initial 10 percent rating assigned to the service-connected low back disability, and denial of service connection for bilateral hearing loss and residuals of a whiplash injury to the neck and shoulders to the Board. 

In a January 2013 Decision Review Officer's decision, the RO increased the Veteran's lumbar spine disability rating to 20 percent effective from August 28, 2009.  Because the RO did not assign the maximum disability rating possible, the Veteran's appeal for a higher disability rating remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).  The Board has characterized the initial rating claim for a low back disability to reflect the RO's actions, as indicated on the title page. 
The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2015.  A copy of the transcript from that proceeding is associated with the record.

In April 2016, the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for additional development.  The requested development has been accomplished and the issues have returned to the Board for appellate review.

In its April 2016 remand, the Board indicated that a claim of entitlement to a TDIU rating had been raised by the record in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board is cognizant that the RO denied a claim of entitlement to a TDIU rating in a January 2017 rating decision.  The Veteran has not appealed that denial, though the appeal period remains open.  Nevertheless, as the TDIU is part of an increased rating claim when raised by the record, and as the Veteran's initial rating claim for a low back disability remains on appeal, the issue of entitlement to a TDIU rating remains on appeal.

In addition, and with respect to the claim for service connection for residuals of a whiplash injury to the neck and shoulders, the Veteran has maintained that due to her service-connected low back disability, her cervical spine disability had worsened because the spine "functions as a unit."  See May 2017 Statement in Support of Claim.  In view of the Veteran's assertion, the Board has expanded the Veteran's claim for service connection for residuals of a whiplash injury to the neck and shoulders to include as secondary to the service-connected low back disability.  See Robinson v. Mansfield, 21 Vet. App. 545, 559 (2008), aff'd Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009).

Furthermore, after issuance of an April 2017 Supplemental Statement of the Case (SSOC), wherein the RO addressed the issues on appeal, additional service treatment and post-service VA medical records were received into the record.  As these records are duplicative of those already received into the record, they are not pertinent to the claim decided herein (i.e., entitlement to service connection for a bilateral hearing loss disability).  Thus, a remand to have the RO issue an SSOC addressing this evidence is not required.  38 C.F.R. § 20.1304 (2017).  A remand is required, however, for issues numbered two (2) through four (4) on the title page, as discussed in the remand following the decision below. 

The issues of entitlement to an initial increased evaluation for degenerative arthritis of the lumbar spine in excess of 10 percent prior to August 28, 2009, and in excess of 20 percent on and after August 28, 2009; entitlement to service connection for residuals of a whiplash injury to the neck and shoulders, to include as secondary to the service-connected low back disability; and, entitlement to a TDIU rating are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

The preponderance of the evidence of record does not show that the Veteran has bilateral hearing loss for VA compensation purposes. 


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by service.  38 U.S.C. 
§§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

At the outset, the Board notes that neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
 
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2016). 

In addition, service connection for certain chronic diseases, including sensorineural hearing loss (organic diseases of the nervous system), may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015).  Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997).  In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2017).  The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).

Generally, once VA determines that a Veteran has a disease or injury that was incurred or aggravated in service, service connection can be granted without regard to severity.  However, hearing loss is an exception.  A minimum degree of hearing loss is a prerequisite for entitlement to service connection.  McKinney v. McDonald, 28 Vet. App. 15 (2016).  A change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385.  Additionally, 38 C.F.R. § 3.385 applies before a service connection determination is made.  If the Veteran's hearing loss does not meet the standard set forth under 38 C.F.R. § 3.385, service connection must be denied as current disability is not shown.  McKinney v. McDonald, 28 Vet. App. 15 (2016).

The preponderance of the evidence of record fails to establish the existence of current bilateral hearing loss disability under the clear requirement of 38 C.F.R. § 3.385 at any time during the appeal period.  In this case, VA received the Veteran's claim for compensation for a bilateral hearing loss disability in July 2010.  

In its April 2016 remand, the Board indicated that the record disclosed that a VA audio examination that was conducted in connection with her claim in May 2008 did not reveal that she had met the criteria for a current hearing loss disability for VA purposes.  38 C.F.R. § 3.385 (2017).  In other words, the auditory thresholds at in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were not 40 decibels or greater; or 26 decibels or greater for at least three of those frequencies are; or, that showed speech recognition scores using the Maryland CNC Test that were less than 94 percent.  See May 2008 VA Audio examination report.  However, audiometric findings from a United States Air Force Reserve examination, conducted on February 22, 2008, had met the standards for bilateral hearing loss under 38 C.F.R. § 3.385.  In particular, the February 22, 2008 audiology examination report revealed pure tone thresholds in decibels as follows:  


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
30
25
35
25
30
-
LEFT
35
30
30
35
35
-

As noted by the Board in April 2016, as the Veteran had auditory threshold of 26 decibels or greater (i.e., 30 and 35) in each ear in at least three (3) frequencies, hearing impairment demonstrated as defined by VA regulatory criteria at 38 C.F.R. § 3.385 had been met at that time.

Thus, the Board remanded the claim for a VA examination with an opinion to determine the etiology of the Veteran's bilateral hearing loss.  VA examined the Veteran in September 2016 and the results were as follows:


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
5
10
15
10
10
98
LEFT
5
10
20
15
10
100

The auditory threshold at each frequency level for the right ear from 500 Hz to 4000 Hz is less than 40 decibels, the auditory threshold is not 26 decibels or greater (i.e., 30 decibels) at the three or more frequency levels for the right ear, and the speech recognition score is not less than 94 percent for the right ear; therefore, the hearing impairment demonstrated in both ears do not meet that regulatory criteria for a bilateral hearing loss "disability" as defined by 38 C.F.R. § 3.385.

Regarding the results of the February 22, 2008 audio examination that disclosed hearing loss for VA compensation purposes, the VA examiner maintained that it was the second follow-up exam for the Veteran's conservation program after there was poor inter-test consistency on two earlier audio screenings that month (i.e, February 13, 2008 and February 14, 2008).  According to the September 2016 VA examiner, the three February 2008 hearing screenings fluctuated significantly (i.e., 20 decibel difference between the February 13, 2008 and February 22, 2008 audio examinations) and were all suspect.  The VA examiner maintained that normal hearing progression did not fluctuate that rapidly over a couple weeks, nor did hearing loss improve if it was truly sensorineural in nature (as loss did not persist over future audiograms). 

The September 2016 VA examiner concluded that the fluctuations between the three February 2008 audiograms might have been examples of active middle ear disorder, cerumen, equipment problems, or, poor attention during testing.  Thus, the September 2016 VA examiner opined that it could be said, with certainty, that the documented hearing loss in the service treatment records was not permanent in nature as future exams from 2008 to 2016, all documented normal hearing. 

The September 2016 VA medical opinion is based on an accurate history and supported by adequate rationale; therefore, it is of significant probative value. There is no medical opinion to the contrary of record.  The Veteran has asserted that she has bilateral hearing loss caused by noise exposure during service.  Although she is competent to report diminished hearing, she is a lay person and does not have the requisite medical expertise to diagnose hearing loss for VA purposes, which is measurable only on objective testing.  The diagnosis of a hearing loss disability for VA purposes is not something that can be determined by mere observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis).  Nor is this question simple, as it requires clinical testing and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported.  Thus, the Veteran's implicit allegation via her claim that she has bilateral hearing loss is not competent evidence, and has little probative value in the determination of whether she has a bilateral hearing loss disability for VA purposes. 

In short, the preponderance of the evidence of record is against a finding that the Veteran had a bilateral hearing loss disability at any time during the appeal period.  38 C.F.R. §3.385; McClain, 21 Vet. App. at 321. 

Therefore the Board finds that the Veteran does not have bilateral hearing loss for which service connection could be awarded for VA purposes.  See 38 C.F.R. 
§ 3.385; Palczewski v. Nicholson, 21 Vet.App. 174 (2007) (finding that VA's threshold requirement for hearing loss disability for VA purposes is valid).  The preponderance of the evidence of record is against the Veteran's claim for service connection for bilateral hearing loss.  See Brammer, 3 Vet. App. at 225.  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for bilateral hearing loss is denied. 

REMAND

Regarding the claim for an increased evaluation for the lumbar spine degenerative arthritis, remand is required for a current and adequate examination.  When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997).  In addition, 38 C.F.R. § 4.59 requires that an adequate VA examination of the joints must, wherever possible, include the results of the range of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).  In a May 2017 statement to VA, the Veteran asserted that her lumbar spine had worsened since the October 2016 examination.  Additionally, the 2016 VA examination does not provide range of motion testing for pain on active and passive motion.

Regarding the claim for service connection for residuals of a whiplash injury to the neck and shoulders, remand is required for notice to the Veteran and a new examination and opinion that addresses a newly raised theory of entitlement.  VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).  Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  Generally, a medical opinion should address the appropriate theories of entitlement.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).

The Veteran seeks service connection for residuals of a whiplash injury to her neck and shoulders.  The Veteran initially maintained that her current symptoms had resulted from a whiplash injury that she had sustained in the United States Air Forces Reserves in 1988 or 1989.  See Transcript (T.) at page (pg.) 8.  An October 2016 VA cervical spine examination reflects a diagnosis of degenerative disc disease (DDD) of the cervical spine and cervical spondylosis and a negative nexus opinion regarding direct service connection.  Id.  As noted in the Introduction, the Veteran recently maintained that because the spine "functions as a unit," her service-connected lumbar spine disability had aggravated her cervical spine disability.  See May 2017 Statement in Support of Claim.  The Veteran has not been provided notice that addresses the requirements for secondary service connection in accordance with 38 C.F.R. § 3.310 (2017) and Allen v. Brown, 7 Vet. App. 439 (1995).  In addition, she has not been provided a VA examination by an appropriate specialist to determine if she has residuals of a whiplash injury to her neck and shoulders, to include DDD of the cervical spine and cervical spondylosis are secondary to her service-connected lumbar spine degenerative arthritis.

Finally, as the issue of entitlement to a TDIU rating is intertwined with the other issues being remanded herein, the Board will remand that issue, as well.  

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran a corrective VCAA notice that addresses the requirements for a claim of entitlement to service connection for residuals of a whiplash injury to the neck and shoulders on a secondary basis in accordance with 38 C.F.R. § 3.310.  This notice must also inform the Veteran of which information and evidence, if any, that she is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on her behalf.

2.  Contact the appropriate VA Medical Center and obtain and associate with the electronic record all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the electronic record. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative.

3.  Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative.

4.  After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected lumbar spine degenerative arthritis.  The entire claims file must be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  The examiner must utilize the appropriate DBQ.  In particular, the examiner must provide the range of motion of the lumbar spine in degrees and state whether there is ankylosis.  The examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

5.  After any additional records are associated with the claims file, provide the Veteran with a VA examination to determine the etiology of any current residuals of a whiplash injury to the neck and shoulders.  The entire claims file must be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  

The examiner must obtain a full history from the Veteran.  The Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation.

For the diagnosed DDD of the cervical spine and cervical spondylosis, the examiner must provide the following opinions:

(a) Is it at least as likely as not (50 percent or greater likelihood) that the Veteran's diagnosed DDD of the cervical spine and/or cervical spondylosis has been caused or aggravated by the service-connected lumbar spine degenerative arthritis?

6.  Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.

7.  Ensure compliance with the directives of this remand.  If a report is deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

8.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claims on appeal.  If a determination on any claim remains unfavorable, the Veteran and her representative must be furnished with an SSOC and provided an opportunity to respond before the appeal is returned 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 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).



______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs