Citation Nr: 18145330 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 12-29 017 DATE: October 26, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a memory loss disorder is remanded. FINDING OF FACT The Veteran does not have a current bilateral hearing loss disability for VA compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2004 to November 2005. He also had additional service in the Illinois Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2016. A transcript of that proceeding is associated with the record. The Board remanded the case for further development in September 2017. That development was completed as to the claim decided herein, and the case has since been returned to the Board for appellate review. The Board notes that the Veteran’s appeal originally included the issues of entitlement to service connection for right knee, left knee, and back disorders. However, in an August 2018 rating decision, the RO granted service connection for those disabilities. The AOJ’s grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, those issues are no longer on appeal, and no further consideration is necessary. Law and Analysis The Board notes that the record contains some indication that the Veteran’s service treatment records from his period of active duty may be incomplete. Following the September 2017 Board remand, the Agency of Original Jurisdiction (AOJ) obtained the Veteran’s service personnel records and additional service treatment records. Moreover, as discussed below, the Veteran has not been shown to have a current hearing loss disability. Therefore, any missing records from the Veteran’s period of active duty from August 2004 to November 2005 would not materially alter the outcome of this decision. Neither the Veteran nor his representative has raised any other 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). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Sensorineural hearing loss is an organic disease of the nervous system and is considered to be a chronic disease for VA compensation purposes. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24); 38 C.F.R. §§ 3.6(a)-(d). National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. “[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor.” Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. For the purpose 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 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is not warranted for bilateral hearing loss. The Veteran has contended that he has bilateral hearing loss as a result of in-service noise exposure, including from improvised explosive devices (IEDs), weapons fire, mortars, and truck engines. See, e.g., August 2011 statement in support of claim; July 2012 VA medical record. The Veteran’s service treatment records do not document any complaints, treatment, or diagnoses of hearing loss. In a July 2004 medical evaluation, prior to the Veteran’s period of active duty, a military physician determined that the he was fully fit for duty. In addition, an August 2004 pre-deployment health assessment noted that the Veteran was deployable and that referral to an ear, nose, and throat specialist was not required. In an October 2005 post-deployment health assessment, the Veteran denied having any medical or dental problems during deployment. It was again noted that referral to an ear, nose, and throat specialist was not required. In a February 2006 VA medical record, the Veteran denied having ear pain or hearing loss. Thereafter, November 2009 and November 2010 audiograms from the Veteran’s period of service in the National Guard showed normal hearing for VA purposes. During a January 2012 VA audiology examination, the Veteran reported having bilateral hearing loss that had its onset about three or four years earlier. However, audiometric testing revealed normal hearing, bilaterally. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 20 20 10 LEFT 10 15 10 15 10 The Maryland CNC Word List Speech Recognition score was recorded as 100 percent bilaterally. During a July 2016 Board hearing, the Veteran testified that he had bilateral hearing loss that had its onset in 2005 during his period of active duty. He further testified that his hearing loss had worsened in severity. The Veteran was afforded an additional VA examination in March 2018. Audiometric testing again did not reveal a bilateral hearing loss disability for VA purposes. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 5 LEFT 10 10 5 10 5 The Maryland CNC Word List Speech Recognition scores were listed as 100 percent for the right ear and 98 percent for the left ear. In this case, the Board has carefully reviewed the record on appeal, but finds that the most probative evidence shows that the Veteran does not have bilateral hearing loss to the extent necessary to constitute a disability for service connection purposes under 38 C.F.R. § 3.385. In this regard, the audiometric findings and speech recognition testing results from the January 2012 and March 2018 VA examinations did not reveal bilateral hearing loss for VA purposes. The Veteran’s VA medical records do not otherwise suggest that his right and left ear hearing acuity is severe enough to constitute a disability for VA compensation purposes. In Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007), the Court specifically upheld the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes. The Board acknowledges the Veteran’s reported history of hearing difficulty. Nonetheless, while laypersons are sometimes competent to provide opinions regarding etiology and diagnosis, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), in this case, the Board finds that the VA examination audiometric findings of record are more probative in assessing whether the Veteran has current bilateral hearing loss for VA purposes. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In this case, the evidence shows that the Veteran does not have bilateral hearing loss for VA purposes. As such, the Board concludes that service connection is not warranted, and no discussion of the remaining elements is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). As the preponderance of the evidence is against the claim of service connection for bilateral hearing loss, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND The Veteran was afforded a VA psychiatric examination in connection with his claim for service connection for memory loss in February 2018. However, in rendering her negative nexus opinion, the examiner stated that she was not an expert in the area of vaccine exposure and memory loss. In addition, the examiner indicated that the Veteran’s symptoms included mild memory loss, but she also stated that the he did not have a diagnosis of memory loss. As such, it is unclear whether the Veteran has a memory disorder that is separate and distinct from his service-connected unspecified trauma related disorder. Therefore, a remand is necessary to obtain an additional VA medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). Following the September 2017 Board remand, the AOJ submitted additional requests for the Veteran’s service treatment records to the Records Management Center (RMC) and Defense Personnel Records Information Retrieval System (DPRIS). However, the service treatment records currently associated with the claims file do not appear to contain vaccination records from the Veteran’s period of active duty service from August 2004 to November 2005. On remand, the AOJ should ensure that all proper development has been accomplished to obtain any outstanding service treatment records from the Veteran’s period of active duty and notify him of the inability to obtain any such records. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for memory loss. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. The AOJ ensure that the Veteran’s complete service treatment records from his period of active duty have been associated with the claims file. It is noted that the claims file contains copies of service treatment records; however, it appears that the records from the Veteran’s period of active duty from August 2004 to November 2005 may be incomplete, as there are no immunization records. The Board notes that the Veteran’s service personnel records show that he was assigned to the 1644th Transportation Company, 106th Transportation Battalion during his period of active duty. As set forth in 38 U.S.C. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the AOJ should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any action to be taken. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any memory loss disorder that may be present. To the extent possible, the AOJ should provide the examiner with a list of dates of verified active service for VA purposes. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all current memory loss disorders. He or she should specifically state whether the Veteran has a memory disorder that is separate and distinct from his service-connected disabilities rather than a symptom attributable to them. The examiner should note that the Veteran is currently service-connected for an unspecified traumatic disorder. For any diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s active service, including any vaccinations therein. In rendering this opinion, the examiner should consider a October 2005 post-deployment health assessment in which the Veteran reported that he received the smallpox and anthrax vaccinations. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel