Citation Nr: 1756747	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  12-33 913A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

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

2.  Entitlement to a 10 percent evaluation based on multiple, noncompensable service-connected disabilities. 


REPRESENTATION

Veteran represented by:	Jan Dils, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and L.F.



ATTORNEY FOR THE BOARD

C. Smith, Associate Counsel


INTRODUCTION

The Veteran served honorably in the United States Marine Corps from November 1989 until November 1993.  The Veteran had additional service in the Army National Guard of North Carolina from June 1994 through June 2000 with periods of active and inactive duty for training.

In July 2016 the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that proceeding has been associated with the electronic claims folder.  

In December 2016 the Board reopened the Veteran's claim of entitlement to service connection for left ear hearing loss, and reconsidered the Veteran's claim for a bilateral foot disorder.  The underlying service connection claims were remanded for further development.  

The issue of entitlement to a 10 percent evaluation based on multiple non service-connected disabilities 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 a left ear hearing loss for VA purposes.



CONCLUSION OF LAW

The criteria for service connection for left ear hearing loss are not met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Neither the Veteran nor his attorney 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).

The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in July 2016.  The Board finds that all requirements for hearing officers have been met.  38 C.F.R. § 3.103 (c)(2) (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand.

The Board also finds that there has been compliance with the December 2016 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

Service Connection: Left Ear Hearing Loss

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) (2017). 

Generally, for VA purposes, 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.  See 38 C.F.R. § 3.385 (2017).  The threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran's DD-214 showed a military occupational specialty of rifleman.  He contends he is left handed and has left ear hearing loss due to holding his rifle on the left side.  Upon enlistment, audiometric testing showed that the Veteran's hearing acuity measured as follows:  

Hertz
500
1000
2000
3000
4000
Left Ear
0
0
0
0
0

November 1989 audiometric testing demonstrated the following hearing acuity levels:

Hertz
500
1000
2000
3000
4000
Left Ear
5
10
0
-5
0

October 1993 audiometric testing demonstrated the following hearing acuity levels:

Hertz
500
1000
2000
3000
4000
Left Ear
20
15
5
5
15

A November 1998 audiogram reported the Veteran's hearing acuity as follows:

Hertz
500
1000
2000
3000
4000
Left Ear
10
15
0
10
15

At separation, the Veteran's hearing acuity measured as follows: 

Hertz
500
1000
2000
3000
4000
Left Ear
20
15
5
5
15

At the July 2016 hearing the Veteran testified that he first noticed symptoms of hearing loss in service after firing rifles on his left side, and that he currently has hearing loss for which he was receiving treatment.  

VA treatment records from 2004 to 2017 do not show evidence of a left ear hearing loss disability.

The Veteran underwent another VA audiology evaluation in June 2017.  At that time his hearing acuity measured as follows:  

Hertz
500
1000
2000
3000
4000
Left Ear
20
25
25
20
25

His average puretone threshold from 500 to 4000 decibels was 23.75.  The left ear speech discrimination score was 96 percent.  The Veteran reported difficulty hearing conversations and frequently having others repeat themselves.  The examiner diagnosed normal left ear hearing with significant changes in hearing thresholds in service.  

The foregoing evidence demonstrates that entitlement to service connection for bilateral hearing loss is not warranted as the Veteran does not have a hearing loss disability for VA purposes.  38 C.F.R. § 3.385 (2017).  The Veteran's puretone thresholds have not measured 40 decibels or greater in any frequency or 26 decibels at least three frequencies, and his speech recognition scores are not lower than 94 percent.  In the absence of evidence of a hearing loss disability for VA purposes at any time during the appeal period, the Veteran's claim of entitlement to service connection for bilateral hearing loss must be denied.  See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  As the evidence preponderates against the claim, there is no reasonable doubt to be resolved.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

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


REMAND

Remand is required for issuance of a statement of the case.  An August 2017 rating decision granted entitlement to service connection for right and left foot hallux valgus, hammertoe, and forefoot varus, and denied entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities.  In November 2017, the Veteran submitted a timely notice of disagreement (NOD) regarding the evaluations assigned and the denial of a 10 percent evaluation based on multiple noncompensable service-connected disabilities.  Although VACOLS indicates that the RO has acknowledged the NOD regarding the increased evaluation claims, it does not appear that the RO has acknowledged the NOD regarding entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities.  Therefore, on remand, a statement of the case should be issued regarding that issue, and the Veteran should be afforded an opportunity to submit a substantive appeal as to that issue.  See Manlincon v. West, 12 Vet. App 238, 240-241 (1999).


Accordingly, the case is REMANDED for the following action:

Issue a statement of the case addressing the issues of entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities.  Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal.  The AOJ should advise the Veteran that the matter will not be returned to the Board for appellate consideration of the issue following the issuance of the statement of the case unless she perfects her appeal

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).



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

Department of Veterans Affairs