Citation Nr: 18140901 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-28 034 DATE: ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a sleep disorder to include as secondary to a psychiatric disorder is remanded. FINDING OF FACT The Veteran does not have a current diagnosis of bilateral hearing loss that meets the requirements of 38 C.F.R. § 3.385. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2001 to October 2003. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated in August 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified during a Board hearing before the undersigned. Entitlement to service connection for bilateral hearing loss The Veteran contends that he currently has bilateral hearing loss that is related to acoustic trauma during military service. Establishing service connection generally requires evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a bilateral hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In assessing the Veteran’s service connection claim for hearing loss, the Board must first determine whether the Veteran has a current hearing loss disability under VA regulations. Hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 dB, and that threshold levels of above 20 dB indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). A July 2014 VA audiology examination report reveals that the auditory thresholds for the right and left ears did not meet the requirements of 26 dB or greater in at least three of three of the required frequencies listed above or 40 decibels or greater in any of the required frequencies noted above. Speech recognition score using the Maryland CNC test was 100 percent in both ears. The examiner determined that the Veteran had normal hearing in both ears. The Veteran underwent another VA examination in August 2017; however, the examiner determined that the test results were not valid for rating purposes due to the inconsistencies noted during the examination. A May 2018 VA audiology examination report reveals that the auditory thresholds for the right and left ears did not meet the requirements of 26 dB or greater in at least three of the required frequencies listed above or 40 decibels or greater in any of the required frequencies noted above. Speech recognition score using the Maryland CNC test was 96 percent in both ears. The examiner determined that the Veteran had normal hearing in both ears. Based on the foregoing, the evidence of record reveals that the Veteran does not have a current diagnosis of a bilateral hearing loss disability under VA regulations. The evidence supporting bilateral hearing loss disability consists of the lay statements from the Veteran. Specifically, the Veteran contends that he has hearing loss due to active military service. Although lay testimony is competent as to observable symptoms and some medical matters, the criteria for establishing a current hearing loss disability are specifically enumerated in 38 C.F.R. § 3.385 which requires minimum audiometric and speech recognition scores to meet those criteria. Cf. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran’s statements therefore cannot establish a current hearing loss disability for purposes of VA compensation benefits. The grant of service connection requires competent evidence to establish a diagnosis of the claimed disability. In the case of hearing loss, the regulations explicitly state the auditory decibel threshold required. Congress specifically limits entitlement for service-connected disability to cases where an in-service disease or injury has resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of evidence of a present disability due to disease or injury, there can be no valid claim. Id. Accordingly, without evidence of a current bilateral hearing loss disability, the Board must find that the Veteran’s claim of entitlement to service connection for bilateral hearing loss is not warranted. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The benefit of the doubt doctrine is not applicable in this regard, because the preponderance of the evidence is against the claim for service connection. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disorder, to include PTSD is remanded. The Board remanded the service connection claim for a psychiatric disorder in June 2017 and December 2017 to obtain a VA examination that addresses all of the Veteran’s psychiatric disorders diagnosed in his treatment records throughout the appeal period, to include PTSD, depression, bipolar disorder, and anxiety disorder. The Board specifically instructed that if the VA examiner found that the Veteran did not meet the diagnostic criteria for any of the above noted psychiatric diagnoses at any point during the appeal period, the examiner must explain why those diagnoses are not valid. The December 2017 Board remand noted that the July 2017 and August 2017 VA examiners found that the Veteran’s symptoms did not meet the diagnostic criteria under DSM-5 criteria; however, the examiner did not give any specific reasoning to explain why the PTSD diagnoses throughout the Veteran’s treatment records were not accurate at any time during the appeal period. The examiner also provided no specific reasons why the diagnoses of depression, bipolar disorder, and an anxiety disorder diagnosed in the treatment records were not valid. On remand, the Veteran was scheduled for a VA psychiatric examination in June 2018. The electronic claims file reveals that the Veteran failed to appear at the scheduled examination. In September 2018, the Veteran’s attorney explained that the Veteran was unable to attend the scheduled examination due to transportation problems and requested that the Veteran be scheduled for a new examination and that his attorney be informed of the date and time of the examination to ensure his attendance. As an examination and medical opinion is necessary to adequately adjudicate the claim on appeal, the Board finds that another remand is necessary to afford the Veteran another opportunity to attend a new examination. 2. Entitlement to service connection for a sleep disorder to include as secondary to a psychiatric disorder is remanded. As the service connection claim for a sleep disorder is claimed as secondary to a psychiatric disorder, the Board finds this claim is inextricably intertwined with the service connection claim for a psychiatric disorder. As such, the Board will defer action on the issue of entitlement to service connection for a sleep disorder until after completion of the actions requested below, and the issue of entitlement to service connection for a psychiatric disorder has been readjudicated. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with a psychiatrist or psychologist who has not previously examined the Veteran, to determine whether any current psychiatric disorder is related to military service. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorder found at any time during the appeal period (even if currently resolved), to include PTSD, depression, bipolar disorder, an anxiety disorder, and any substance abuse disorder. The examiner must specifically address the noted diagnoses of PTSD, depression, bipolar disorder, and an anxiety disorder in the Veteran’s VA records. If the examiner finds that the Veteran has not met the criteria for a diagnosis of PTSD, depression, bipolar disorder, or an anxiety disorder at any time during the course of the appeal, the examiner must explain why the diagnoses of record during the appeal are not valid. If the Veteran is shown to have PTSD at any point during the appeal period, the examiner should specifically address the stressor(s) from which that diagnosis stems and whether it is at least as likely as not (i.e., a 50 percent or greater probability) due to the stressor of fear of hostile military or terrorist activity. For each psychiatric disorder found other than PTSD, to include depression, bipolar disorder, and an anxiety disorder, the examiner should provide an opinion regarding whether each disorder at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service. Additionally, if any psychiatric disability is found to be related to military service, the examiner should opine whether the Veteran’s substance abuse disorder is at least as likely as not (a) caused by; or (b) aggravated (i.e. worsened beyond the normal progression of that disease) by any of the diagnosed psychiatric disorders found to be related to military service. In rendering the above opinions, the examiner should specifically discuss the Veteran’s mental health treatment records, as well as, the previous VA psychiatric examinations, to include the findings and conclusions of those examiners. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Berry, Counsel