Citation Nr: 1756919	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  11-18 599A		DATE


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to an increased evaluation for temporomandibular joint disorder (TMJ), evaluated as 10 percent disabling prior to November 3, 2015, and 40 percent thereafter.

3.  Entitlement to an increased evaluation for pes planus with plantar fasciitis, evaluated as 10 percent disabling prior to January 15, 2015, and 50 percent thereafter. 


ORDER

The claim for an increased evaluation for TMJ is dismissed.

The claim for an increased evaluation for pes planus with plantar fasciitis is dismissed.

Service connection for bilateral hearing loss is denied.



FINDINGS OF FACT

1.  In June 2016 and August 2016 statements, the Veteran expressed his desire to withdraw his claims for increased evaluations for TMJ and pes planus with plantar fasciitis.

2.  The Veteran does not have hearing loss in either ear for VA compensation purposes.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the claim for an increased evaluation for TMJ have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2012).

2.  The criteria for withdrawal of the claim for an increased evaluation for pes planus with plantar fasciitis have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. 
§ 20.204 (2012).

3.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b) (2012); 38 C.F.R. 
§§ 3.102, 3.303, 3.307, 3.309(a), 3.385, 4.3, 4.7 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 2000 to August 2008.

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

In March 2015, the Board remanded this matter to afford the Veteran an informal hearing before a Decision Review Officer, which occurred in December 2015 and a conference report is of record.  The case has been returned for appellate consideration, and the Board finds there has been substantial compliance with its March 2015 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand).

During the pendency of the appeal, in a June 2016 rating decision, the RO increased the disability evaluation for TMJ to 40 percent effective November 3, 2015; and bilateral pes planus with plantar fasciitis to 50 percent effective January 15, 2015.  

This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records.

Withdrawal 

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed.  A substantive appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In June 2016 and August 2016 statements, prior to the promulgation of a decision in the appeal, the Veteran expressed satisfaction with the increased ratings assigned by the Agency of Original Jurisdiction (AOJ) for his TMJ and bilateral pes planus with plantar fasciitis in the June 2016 rating decision, and requested that the issues be withdrawn.  As such, there remain no allegations of errors of fact or law for appellate consideration with regard to these claims.  See 38 C.F.R. § 20.204.  Accordingly, the Board does not have jurisdiction to review the issues, and they are dismissed.

Veterans Claims Assistance Act of 2000

As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017).  The Veteran has not 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).  As such, the Board will now review the merits of the Veteran's claim.

Law and Analysis

The Veteran essentially contends that his duties as a police officer while in service contributed to his bilateral hearing loss and, therefore, he is entitled to service connection.  In his October 2009 notice of disagreement, the Veteran stated that he had a decrease in hearing between 2000 and 2004 and that he has keloid in his left ear that was shown during a 2004 examination.  The Board finds that competent, credible, and probative evidence establishes that the Veteran does not have hearing loss in either ear for VA compensation purposes.

In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110 (2012); 38 C.F.R.          § 3.303 (2017).  To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).

For certain enumerated chronic diseases, such as sensorineural hearing loss, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service.  38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining            § 3.303(b) to those chronic diseases listed in § 3.309(a)).

Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b) (2017); see 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  38 C.F.R. § 3.307(b) (2017).

For VA purposes, there are three ways in which an audiological examination can show that hearing loss is disabling:  1) "when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater"; or 2) "when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater"; or 3) "when speech recognition scores using the Maryland CNC Test are less than 94 percent."  38 C.F.R. § 3.385 (2017).  "Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss."  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Absence of a hearing loss disability during service is not always fatal to a service connection claim.  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.  Hensley v. Brown, 5 Vet. App. 155, 158-60 (1993) (setting out the requirements for establishing service connection for hearing loss).

In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim.

The Veteran, as a lay person, is competent to note what he experiences, including decreased hearing acuity.  See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994).  It is similar to a separated shoulder, varicose veins, or flat feet, which are capable of direct lay observation.  See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In this case, however, the question of whether the specific degree of the Veteran's hearing loss meets the criteria for hearing loss for VA compensation purposes is a complex medical question unlike testimony as to the Veteran experiencing the symptoms of decreased hearing generally.  Therefore, appropriate expertise is required to determine whether the Veteran's hearing acuity is impaired to the level of a hearing loss disability under VA regulations.  In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render audiological findings.  See 38 C.F.R.      § 3.159(a)(1) (2017).  While the Veteran is competent to report what he experiences, he is not competent to ascertain his level of hearing loss, which is not readily subject to lay observation.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

With respect to the first Holton element, current disability, the Veteran was afforded a VA examination in February 2009, during which his speech recognition was scored as 96 percent bilaterally and the following puretone thresholds were obtained:






HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
25
20
LEFT
15
10
15
20
20

The Veteran stated that noise exposure while he served as a military policeman in service has caused hearing difficulties, but during the examination, the examiner recorded that the Veteran denied any significant difficulties with his hearing.  The examiner reported that an otoscopic examination revealed clear external auditory canals bilaterally; middle ear testing was normal bilaterally; audiologic testing revealed normal hearing bilaterally; and speech discrimination ability was excellent bilaterally.  Additionally, immittance testing revealed normal tympanograms with acoustic stapedial reflexes within normal limits bilaterally.  The examiner diagnosed the Veteran with normal hearing bilaterally.

A primary care nursing triage note in the Veteran's VA medical treatment records shows that in May 2010 the Veteran was seen for a complaint of a "moving" sensation in his left ear for four months.  At that time, the Veteran reported that his hearing was normal.  The Veteran was assessed as having otitis and prescribed medication.

In early October 2014, the Veteran had an outpatient audiology consultation for a complaint of occasional difficulty hearing bilaterally.  The report shows:  otoscopy unremarkable bilaterally; tympanometry revealed normal ear canal volume; normal middle ear pressure and normal compliance bilaterally; and ipsilateral acoustic reflex was present at screening level at 1000 Hz for the left ear and absent for the right ear.

During the examination, the examiner counseled the Veteran to respond at threshold level for the puretone threshold examination.  It was reported that the Veteran responded to puretones bilaterally in the severe to profound range despite reinstruction.  The speech recognition test did not agree with the puretone audiogram bilaterally, and it was noted that the consistency and reliability of the audio exam was poor.  It was reported that DPOAEs (distortion-product optoacoustic emission) were present at robust for the right ear from 1500-3000 Hz and absent for the left ear from 1500-4000 Hz.

The Veteran reported that his tinnitus was affecting his ability to hear the tones that day and that his tinnitus was less severe in the afternoon.  The examiner recommended that the Veteran return for a repeat hearing examination for the next available afternoon examination.

In late October 2014, the Veteran returned for a repeat audiology examination.  The examiner reported that otoscopy revealed clear ear canals with visualization of the tympanic membrane bilaterally; tympanometry revealed normal pressure and compliance (Type A) bilaterally.  It was reported that speech recognition threshold was obtained at 30 dB HL for both sides, but it was noted that the Veteran provided one word responses.  Puretone audiometry produced responses from 250 to 4000 Hz within the essentially normal range for the right ear.  For the left ear, puretone audiometry produced responses from 250 to 1000 Hz within normal limits, sloping to a moderate to moderately-severe range at 2000 and 4000 Hz.

The examiner noted that, initially, the Veteran was unable or unwilling to provide valid threshold-level responses for puretone air conduction stimuli.  The results obtained were the result of reinstruction and retesting.  The Veteran reported that "ringing" was impeding his ability to hear the puretone presentations, at which point testing was discontinued.

In January 2015, the Veteran was afforded a VA examination, during which the following puretone thresholds were obtained:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
20
20
LEFT
10
10
20
20
25

The examiner stated that the puretone test results were valid for rating purposes.  The Veteran's speech recognition scores were 74 and 52 percent in the right and left ear respectively, however, the examiner stated that the use of word recognition scores was not appropriate for this Veteran because of "language difficulties, cognitive problems, and inconsistent word recognition scores," which were in variance to the puretone thresholds.  The examiner noted slurred, mumbled speech, and a strong accent.  The audiological findings bilaterally were normal for acoustic immittance, ipsilateral acoustic reflexes, and contralateral acoustic reflexes.

The Veteran was diagnosed bilaterally as having sensorineural hearing loss in the frequency range of 6000 Hz or higher.  The examiner reported that bilaterally there was not a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz.  The examiner opined that the Veteran's hearing loss at the high frequencies was not at least as likely as not caused by or a result of the Veteran's military service because the current understanding in the medical literature is that there is no evidence of delayed-onset hearing loss due to noise exposure.  The examiner noted that the Veteran's June 2008 exit audiogram showed normal hearing within normal limits at all tested frequencies, bilaterally.

The Board finds that the preponderance of the evidence shows that the Veteran does not currently have bilateral hearing loss for VA compensation purposes.  Neither the February 2009 nor the January 2015 VA examination report shows in either ear that the Veteran has auditory thresholds of 40 decibels or greater; or 26 decibels or greater for at least three of the specified frequencies.  See 38 C.F.R. § 3.385 (2017).  At the February 2009 VA examination, the Veteran's speech recognition scores were above 94 percent.  During the January 2015 examination, the examiner opined that speech recognition scores were not appropriate for this Veteran, citing non-hearing-related bases for the opinion.

The Board finds the two October 2014 examinations inadequate and affords them no probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-04 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  Each examination involved reinstruction and retesting of the Veteran with the examination ultimately being abandoned in both instances.  Additionally, the late October 2014 VA examination report shows puretone audiometry results, but the numerical values were not reported.

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  "In the absence of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  According, the first Holton element is not met, and the claim fails.



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Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied.  See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).



______________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals

ATTORNEY FOR THE BOARD	Leanne M. Innet, Associate Counsel

Copy mailed to:  Veterans of Foreign Wars of the United States





Department of Veterans Affairs