Citation Nr: 1801464	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-28 667A	)	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 a disability rating in excess of 30 percent for residual injury to right shoulder, secondary to rotator cuff tear.  

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Diaz-Ferguson, Associate Counsel 

INTRODUCTION

The Veteran served on active duty from November 1968 to April 1969.

This matter comes before the Board of Veterans' Appeals (Board) from May 2013, August 2014, and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, and an August 2015 rating decision of the VA RO in Houston, Texas.    

This matter was, most recently, before the Board in July 2015, when the issues on appeal were remanded for additionally development.  The matter is now back before the Board for further appellate action. 

The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System (VBMS).  

The issue(s) of entitlement to an increased rating for residual injury to the right shoulder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  


FINDING OF FACT

The Veteran does not have a current diagnosis of hearing loss for VA purposes in either ear.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 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.

The Veteran seeks service connection for hearing loss.  Service treatment records (STRs) are negative for any complaints diagnoses, or treatment of hearing loss.  Audiological examinations at induction and separation from service recorded all puretone thresholds at 0 decibels.  

An August 1971 medical examination report shows that he denied a history of hearing loss and that puretone thresholds were recorded in decibels as follows: 

The Veteran underwent a private audiological examination in June 2014, in which the puretone thresholds were recorded as follows: 

06/2014
HERTZ



500
1000
2000
3000
4000
AVERAGE
RIGHT
25
15
25
30
30
25
LEFT
25
15
25
25
20
22

In accordance with the Board's July 2015 remand, the Veteran underwent a VA audiological examination in September 2016.  On that occasion, the Veteran's puretone thresholds were measured as follows: 

09/2016
HERTZ



500
1000
2000
3000
4000
AVERAGE
RIGHT
15
15
15
25
25
19
LEFT
15
10
20
15
20
16

Speech recognition was 98 percent in the right ear and 100 percent in the left ear.  The examiner noted the Veteran had sensorineural hearing loss in the right ear, and normal hearing in the left ear.  Regarding the right ear hearing loss, however, the examiner amended his finding, stating that the Veteran may have hearing loss at a level that is not considered to be a disability for VA purposes. 

After a careful review of the record, the Board was unable to find other treatment records, either in service or thereafter, relevant to whether the Veteran has a current diagnosis of hearing loss. 

Although the above-noted evidence clearly shows there was an audiometric shift in the Veteran's hearing while in service, the record did not otherwise include evidence of a puretone threshold of 40 decibels or greater at 500, 1000, 2000, 3000, or 4000 Hertz; puretone thresholds of 26 decibels or greater at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz; or speech recognition scores using the Maryland CNC Test less than 94 percent.  38 C.F.R. § 3.385.  The Board acknowledges the Veteran's assertion that his hearing has been a problem since service, and it also acknowledges the evidence showing his hearing has deteriorated over time.  However, whether the Veteran has a disability due to impaired hearing for VA purposes is clearly defined by regulations.  Unfortunately, the evidence shows the Veteran does not have a current hearing disability for VA purposes.  As such, the Board finds that the evidence of record did not demonstrate a hearing disability for VA purposes.

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  "In the absence of proof of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Absent competent evidence reflecting the current presence of the claimed disability, a basis upon which to establish service connection for bilateral hearing loss has not been presented and the appeal must be denied.  Brammer, 3 Vet. App. at 225.

Because a hearing disability for VA purposes has not been shown, the preponderance of the evidence is against this service connection claim, the benefit-of-the-doubt rule does not apply, and the claim of entitlement to service connection for bilateral hearing loss must be denied.  38 U.S.C.A. § 5107 (b); Gilbert, 1 Vet. App. at 53.


ORDER

Service connection for bilateral hearing loss is denied.  


REMAND

In September 2013, the Board remanded this issue for further development, to include a VA examination, which was conducted in September 2016; the examination report is on Virtual VA.  Since then, the United States Court of Appeals for Veterans Claims (Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations.  

The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so."  In light of these decisions, the Board finds that a new VA examination should be provided addressing the Veteran's right shoulder disability.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

As to the Veteran's claim of entitlement to a TDIU, the Board notes the Veteran does not currently meet the schedular criteria for a TDIU as none of his service-connected disabilities are rated at 40 percent, and his combined rating is less than 70 percent.  However, the Board finds this issue is inextricably intertwined with the issue of entitlement to a higher rating for a right shoulder disability.  See Harris v. Derwinski, 1Vet. App. 180, 183 (1991).  As such, it too must be remanded.  

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include any more recent treatment records related to the claimed disabilities, and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e).  

2.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his right shoulder symptoms and the impact of his service-connected disabilities on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.   

3.  The Veteran should be afforded a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected right shoulder residual injury.  All pertinent evidence of record should be made available to and reviewed by the examiner.  Any indicated studies should be performed.

Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and non-weight-bearing range of motion assessments.  If the examiner is unable to conduct the required testing or concludes the required testing is not necessary, he or she should clearly explain why that is so.  

The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present.  

The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time.  

Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.  If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).  

4.  If following the Veteran's above-noted examination, the Veteran still does not satisfy the schedular criteria for entitlement to a TDIU rating, consider whether to refer the issue to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b).  The electronic claims file must be made available to the Director of Compensation Service.  

5.  Then, readjudicate the issues on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the board intimates no opinion as to any final outcome warranted. 

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims 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).




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs