Citation Nr: 1804780 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-16 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from August 1970 to December 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In the present case, the Board concludes that bifurcating the Veteran's claim for bilateral hearing loss into two separate issues for independent adjudication is the proper way of handling the appeal. Specifically, the Board is bifurcating this issue into two separate issues - (1) service connection for right ear hearing loss and (2) service connection for left ear hearing loss. As such, this case has been recharacterized as set forth on the title page. The Board can bifurcate a claim and address different theories or arguments in separate decisions. Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006); see also Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (VA is free to dismember a claim and adjudicate it in separate pieces). In February 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A copy of that transcript is of record. Additional evidence, in the form of additional VA treatment records and an August 2016 heart conditions disability benefits questionnaire, were associated with the record subsequent to the most recent, October 2015, supplemental statement of the case issued for the appeal herein. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. See 38 C.F.R. § 20.1304 (c) (2017). However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See VBA Fast Letter 14-02. Here, although the Veteran's substantive appeal for the relevant issues was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. The record does not reflect that the additional evidence was submitted by the Veteran. Nevertheless, the August 2016 heart conditions disability benefits questionnaire is not relevant to the claims herein. Moreover, the additional VA treatment records are duplicative of evidence previously of record with respect to the Veteran's right ear hearing loss claim, namely, the additional evidence does not reflect evidence of right ear hearing loss disability for VA purposes. Furthermore, as the claim for left ear hearing loss is remanded for additional development, there is no prejudice to the Veteran in this regard. The issue of entitlement to service connection for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The competent clinical evidence of record does not reflect that the Veteran has right ear hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim for entitlement to service connection right hearing loss, VA has met all statutory and regulatory notice and duty to assist provisions, including pursuant to 38 C.F.R. § 3.103 (c)(2) (2017) and Bryant v. Shinseki, 23 Vet App 488 (2010). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, such as sensorineural hearing loss, as an organic disease of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purpose of applying the laws administered by VA, 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 from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Turning to the first element of service connection for right ear hearing loss disability, the existence of a present disability, the Board finds that the evidence of record reflects right ear hearing loss disability for VA purposes has not been demonstrated. In this regard, the Veteran was afforded an audiological examination in March 2011. The March 2011 VA audiological examination revealed the following right ear puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 20 30 As described above, the March 2011 VA examination report revealed that the Veteran only had one auditory threshold above 26 decibels; however, such was less than 40 decibels. The March 2011 Maryland CNC test score was 96 percent in the right ear. The audiometric results of this examination does not show that the Veteran has hearing loss "disability" for VA purposes under the provisions of 38 C.F.R. § 3.385 with respect to his right ear. The March 2011 VA examiner's findings are consistent with VA treatment records. Specifically, an April 21, 2011 VA treatment record documented a discussion as to options for new hearing aids and further noted that the Veteran very recently had March 2011 audiological evaluation and therefore a complete re-test was unnecessary. A July 15, 2014 VA treatment record also noted, in part, that audiometric test results indicated the presence of a mild sensorineural hearing loss of the right ear, beginning at 6000 Hertz, and speech recognition scores in quiet were very good, bilaterally. The July 15, 2014 VA treatment record specifically found that current results reflected no changes in the Veteran's hearing status when compared to the previous results from April 21, 2011. As described above, the July 15, 2014 VA treatment record noted the presence of a mild sensorineural hearing loss of the right ear, beginning at 6000 Hertz; however, 6000 Hertz or higher frequencies are not designed as relevant auditory frequencies to determine hearing loss disability for VA purposes. As such, although the July 15, 2014 VA treatment record did not list the actual right ear audiometric test result for 6000 Hertz or higher, by definition, such could not demonstrate right ear hearing loss disability for VA purposes, and thus a remand to attempt to obtain such information is not warranted. Furthermore, while other VA treatment records, identified sensorineural hearing loss as part of a medical problem list and/or documented hearing related issues, such as hearing aid adjustments, these records do not demonstrate the detailed audiometric testing as documented in the VA examination report necessary to determine right ear hearing loss disability for VA purposes. Thus, as described above, during the pendency of the claim or proximate to the claim, it has not been shown, with respect to his right ear, that the Veteran has an auditory threshold of 40 decibels or greater for any of the designated frequencies (500, 1000, 2000, 3000, 4000 Hertz), that he has at least three auditory thresholds of 26 decibels or greater for the designated frequencies, or that he has a speech recognition score using the Maryland CNC Test of less than 94 percent. During the February 2017 Board hearing, the Veteran essentially argued that the practical effect of what he experienced on a day-to-day basis in terms of hearing difficulty should constitute sufficient severity to warrant classification as a hearing loss disability for which service connection can be granted. Specifically, he expressed dissatisfaction with the March 2011 audiological examination by stating that putting on a set of headphones in a soundproof room, versus the ability to hear in everyday life, were two different things. However, applicable VA law provides that examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85 (2017). There is no indication that the March 2011 audiological examination was conducted improperly. In this regard, the Board is entitled to presume the competency of the March 2011 VA examiner and specific challenges to a VA examiner's competency must be raised by the Veteran to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). The Veteran has not submitted additional evidence in support of his claim that his reported right ear hearing loss meets the threshold requirements set out by 38 C.F.R. § 3.385. In a February 2011 statement, the Veteran's spouse reported, in part, that the Veteran could not hear her and his lack of response or strange unrelated answers had been a standard part of their conversation for years. Furthermore, in February 2017 testimony, the Veteran reported difficulty hearing, including difficulty hearing his spouse. While the Veteran, and his spouse are competent to report what comes to them through their senses (see Layno v. Brown, 6 Vet. App. 465 (1994)), including diminished hearing capacity and manifestations thereof, they are not competent to assess that such hearing loss meets the criteria for hearing loss "disability" as set forth in 38 C.F.R. § 3.385. Rather, such may only be established by audiometric testing. The evidence in this case simply does not support a finding that the Veteran currently has right ear hearing loss disability for VA purposes. Diminished hearing is not synonymous with a hearing loss disability for VA purposes and not all hearing loss constitutes hearing loss "disability" for VA purposes. The Board may not grant the Veteran service connection, even at a noncompensable level, when the standard for a disability has not been met. The Board notes that Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability. See 38 U.S.C. § 1110 (West 2012). The evidence reflects that the Veteran does not have a right ear hearing loss disability for VA purposes. In the absence of proof of current disability, the claim of service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There has been no finding of a current VA disability proximate to or during the pendency of the Veteran's claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Thus, service connection for right ear hearing loss is not warranted. In light of the lack of current right ear hearing loss disability for VA purposes, a discussion concerning the additional elements of service connection as well as chronicity and/or continuity of symptomatology is unnecessary. 38 C.F.R. §§ 3.303(b), 3.309(a). For the foregoing reasons, the Board finds that the claim of service connection for right ear hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of service connection for right ear hearing loss, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for right ear hearing loss is denied. REMAND Pursuant to VA's duty to assist additional development is required with respect to the issue of entitlement to service connection for left ear hearing loss. As discussed above, a July 15, 2014 VA treatment record, from the Portland VA Medical Center (VAMC), addressed audiometric testing but did not provide the actual results. However, with respect to left ear hearing loss, the July 15, 2014 VA treatment record documented an audiological evaluation, which in part, found mild sensorineural loss of the left ear, beginning at 4000 Hertz. As described above, 4000 Hertz is a relevant frequency to determine hearing loss for VA purposes. Thus, on remand, all VA treatment records associated with the July 15, 2014 audiological evaluation, from the Portland VAMC, to include all audiometric testing results, should be obtained and associated with the claims file. See 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all VA treatment records associated with the July 15, 2014 audiological evaluation from the Portland VAMC, to include all audiometric test results, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. After completing the above, and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the Veteran's claim of entitlement to service connection for left ear hearing loss should be readjudicated based on the entirety of the evidence. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran 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 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. §§ 5109B, 7112 (West 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs