Citation Nr: 1800160 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-14 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a rating in excess of 10 percent for lumbosacral strain. REPRESENTATION Appellant represented by: Attorney Elizabeth Cubbage WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1965 to September 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record. In March 2016, the Board remanded the matters for additional development. The matter of the rating for lumbosacral strain is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. FINDING OF FACT A hearing loss disability was not manifested in service; sensorineural hearing loss (SNHL) was not manifested within one year following the Veteran's separation from service; and the preponderance of the evidence is against a finding that his current hearing loss is related to his service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in February 2011. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not raised any issues VA's duties to notify and assist a claimant. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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 duty to assist argument). A deficiency under Bryant v. Shinseki, 23 Vet. App. 488 (2010), is not alleged (see Dickens and Scott). Legal Criteria, Factual Background, and Analysis 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 in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. 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. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, to include SNHL (as an organic disease of the nervous system), may service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for organic disease of nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). For 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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. Hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection for such disability to be granted. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for hearing loss must show, as is required in any claim of service connection, that a current hearing loss disability is the result of an injury or disease in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. The Veteran contends that his hearing acuity was damaged by his service in the artillery. While his DD-214 shows that his last MOS in service was executive Chef, his service personnel records show that for about six months during his service in Vietnam he was attached to an artillery unit, serving as a cannoneer. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis of hearing loss. On August 1965 service pre-induction examination, audiometric findings were within normal limits (puretone thresholds all between 0 and 20 decibels) at all pertinent frequencies. On August 1967 service separation examination, puretone thresholds were within normal limits (between 5 and 15 decibels) at all frequencies; he did not report a hearing loss. The values noted above reflect conversions of audiometry reported in ASA units to the current standard of ISO units for consistency/comparison purposes. On May 2011 VA examination, the examiner noted that when the Veteran entered the military in 1965 and when he was discharged in 1967, his hearing was within normal limits in both ears with no threshold shifts. The Veteran reported the onset of hearing loss in the 1980s that had worsened over the years, resulting in people complaining that he cannot hear and sometimes missing words. He reported that he served as an artilleryman in service for 8 months and was then a cook for 4 months; he was in Vietnam for 1 year and denied any service injuries that affected his hearing. He reported that he was around excessive noise in service such as artillery explosions, mortars, helicopters and jets for 12 months intermittently; he wore hearing protection but felt it was inadequate. Outside the military, he reported noise exposure from working at a printing press and he was around noise for 20 years, (with use of hearing protection). He reported he had no recreational noise exposure, and no major illnesses, injuries or head trauma affecting his hearing. He reported that in the 1970s, both of his eardrums were lanced due to fluid in the ears. He reported recurrent tinnitus with onset in 2008; the tinnitus sometimes woke him at night. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 20 40 50 65 70 Left 30 45 50 70 65 Word recognition scores were 72 percent in the right ear and 80 percent in the left ear. The assessment was a predominantly mild SNHL bilaterally up to 1000 Hertz, sloping to a moderate to moderately severe hearing loss in both ears at the mid and high frequencies. The examiner opined that the Veteran's hearing loss is not caused as a result of noise exposure or any activity in the military. The examiner noted that the Veteran's hearing was normal upon discharge, and he reported the onset of the hearing loss was in the 1980s, many years after he left the service. In a January 2012 statement, the Veteran's primary care physician Dr. Renzi opined that the Veteran has hearing loss secondary to noise exposure in Vietnam as an artillery operator. In February 2014, Dr. Renzi opined that the Veteran is disabled due to lumbosacral strain, hearing loss, eczema and vertigo, "all of which were military related". At the October 2015 Board hearing, the Veteran testified that he served in combat in Vietnam as an artilleryman. He testified that he was in artillery but when he got to Fort Hood, Texas, they did not know what to do with him, so they put him in the mess hall as a cook because it was a tank outfit. He testified that he wore earplugs but an hour after shooting, he would still experience ringing in his ears; he testified that he felt as though his ears were clogged like after swimming. He testified that these symptoms would last for about an hour afterwards and would clear up but he would then begin shooting again [with recurrence of symptoms]. In March 2016, the Board found the May 2011 VA examination and opinion to be inadequate and remanded the matter. On May 2016 VA examination (pursuant to the Board's remand), the Veteran reported difficulty hearing in noisy environments, in group situations, and from a distance. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 35 45 50 65 80 Left 35 35 60 75 65 Speech recognition scores were 48 percent in the right ear and 84 percent in the left ear. The diagnosis was bilateral SNHL. The examiner opined that the Veteran's hearing loss is not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The examiner noted that the Veteran's hearing thresholds entrance and separation were within normal limits and, according to the American College of Occupational Medicine Noise and Hearing Conservation Committee, "a noise induced hearing loss will not progress once it is stopped". The examiner opined that, therefore, the Veteran's current hearing loss is less likely than not related to military noise exposure/acoustic trauma. Postservice treatment records do not include any further opinions regarding the etiology of the Veteran's hearing loss. It is not in dispute that the Veteran now has a bilateral hearing loss disability (as defined in 3.385), as such was found on VA examination. It may also readily be conceded that by virtue of his service as an artilleryman in Vietnam the Veteran was exposed to hazardous levels of noise in service. What remains for consideration is whether or not the current bilateral hearing loss is etiologically related to his service/acknowledged exposure to noise therein. A hearing loss disability was not manifested in service, and SNHL was not manifested within a year following the Veteran's discharge from service. Accordingly, service connection for the current bilateral hearing loss on the basis that it became manifest in service, and persisted, is not warranted. As SNHL is not shown to have been manifested in service or in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309 do not apply. As SNHL (as an organic disease of the nervous system) is listed in 38 C.F.R. § 3.309(a)m the Board has considered whether service connection for hearing loss may be granted based on continuity of symptomatology. However, continuity of symptomatology is simply not demonstrated by the evidence in the record. The Veteran did not report a hearing loss on August 1967 separation examination or for many years thereafter, and when he was first evaluated for such disability, he indicated that he first noted it in 1980. Therefore, service connection for the SNHL based on continuity of symptomatology is not warranted. The preponderance of the evidence is also against a finding that the Veteran's current bilateral hearing loss may otherwise be etiologically related to his service. Regarding the dispositive factor of a nexus between the current hearing loss and service/exposure to noise therein, the Board finds the May 2011 and May 2016 VA examination and opinion reports (cumulatively) particularly probative. They reflect close review of the Veteran's claims file and familiarity with his medical history and lay accounts. The May 2016 opinion offered include rationale that cites to accurate factual data and medical literature (the American College of Occupational Medicine Noise and Hearing Conservation Committee finding). In comparison, the January 2012 and February 2014 private opinions supporting the Veteran's claim warrant less probative weight. They are merely conclusory statements (without explanation of rationale). They do not reflect familiarity with the Veteran's complete history of the claimed disability, and do not account for factual data weighing against the Veteran's claim, including the absence of any documentation of hearing loss in service or during a lengthy period of time following service; that hearing loss was not found on service separation examination; and that a significant puretone threshold shift during service was not shown. Furthermore, they do not cite to any supporting medical literature. . Greater weight may be given to one medical provider's opinion over another's depending on factors such as reasoning employed and the extent to which clinical records and other evidence were reviewed. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The more probative, and only adequate, medical opinion evidence in the record regarding a nexus between the Veteran's hearing loss disability and his service is in the report of the VA examinations. The preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss is etiologically related to his service/exposure to noise therein, and against his claim of service connection for such disability. Accordingly, the appeal in this matter must be denied. ORDER Service connection for bilateral hearing loss is denied. REMAND Upon close review of the expanded record, the Board finds that further development of the evidence is required to comply with VA's duty to assist the Veteran. See 38 C.F.R. § 3.159. Regarding the rating for lumbosacral strain, in Correia v. McDonald, 28 Vet. App. 158 (2016) the United States Court of Appeals for Veterans Claims (CAVC) held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible when assessing joint disabilities. The final sentence provides that "[t]he joints involved should be tested 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." CAVC found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. The May 2016 VA back examination report does not comply with the CAVC holding in Correia. Accordingly, another examination to address such deficiency is necessary. Accordingly, the case is REMANDED for the following: 1. The AOJ should arrange for an orthopedic examination of the Veteran to assess the nature and current severity of his service-connected back disability. (a) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the back cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done (and explain why). (b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner must include rationale with all opinions. 2. The AOJ should then review the record, ensure that the development sought is completed as requested, and readjudicate the claim. If the benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs