Citation Nr: 18152391 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-21 547 DATE: November 21, 2018 ORDER Entitlement to service connection for a bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder is remanded. Entitlement to service connection for a bilateral hip disorder is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for bilateral lower extremity neuropathy is remanded. FINDING OF FACT A bilateral hearing loss was not demonstrated inservice, such a disorder is not shown to be related to service, and a sensorineural hearing loss was not compensably disabling within a year of separation from active duty. CONCLUSION OF LAW A bilateral hearing loss was not incurred or aggravated inservice, and a sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1987 to June 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a July 2017 videoconference hearing before the undersigned. A transcript of that proceeding is associated with the record. With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). To establish entitlement to service connection for a disability, a 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 the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may be granted for a sensorineural hearing loss when the disorder is manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral hearing loss The Veteran contends that he has a current bilateral hearing loss that is related to his military service. 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 compensable bilateral hearing loss and has not had such a disability during the pendency of the claim. As such, the claim must be denied. 38 U.S.C. §§ 1110, 1131, 5107(b); Brammer v. Brown, 3 Vet. App. 223(1992). Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. A VA examination was held in August 2015. VA examination findings show the left ear with 94 percent speech discrimination. Decibel (dB) loss at the puretone 500 Hertz (Hz) threshold was 20, 20 dB at 1000 Hz, 15 dB at 2000Hz, 20 dB at 3000 Hz, and 15 dB at 4000 Hz. The right ear showed 94 percent speech discrimination. The decibel loss at 500 Hz was 15, 10 dB at 1000 Hz, and 20 dB at 2000, 3000 and 4000 Hz. Based on the August 2015 examination for VA purposes, there is no current hearing loss disability present at any time during the appeal period. There is no competent evidence to the contrary. Without a current disability there is no basis for service-connection. Brammer. There is also insufficient evidence of a hearing loss disability for VA purposes at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 319 (2007) and Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Therefore, service connection is not warranted on a direct basis. Service connection is also not warranted for hearing loss on a presumptive basis as there is no competent evidence of record documenting the presence of a compensably disabling hearing loss for VA purposes within one year of discharge from active duty. To the extent that the Veteran has alleged the presence of this symptomology, the Board finds his allegations not to be probative. Establishing the presence of a hearing loss for VA purposes requires specialized testing, and as a lay person the Veteran is not competent to provide this evidence. The Veteran has neither provided nor identified any evidence showing that he has a hearing impairment to qualify as a disability under 38 C.F.R. § 3.385. While the Veteran might believe that he has sufficient hearing impairment to qualify as a disability, his lay opinion is clearly of less probative value than the test results set forth above. Accordingly, this claim must be denied. The preponderance of the evidence is against the claim. REASONS FOR REMAND Posttraumatic stress disorder During a July 2017 hearing, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. Additionally, the claims file does not appear to contain his complete service personnel records for his period of service in the Navy. In particular the record lacks his Chief evaluation reports and enlisted evaluation reports which may contain details related to his reported funeral duties. Hence, a remand is required to obtain them. Bilateral hip disorder The Veteran claims that his bilateral hip pain is due to service or other service connected injuries. Because the Veteran has not been given a hip examination the Board cannot make a fully-informed decision on this issue. Hence, further development is in order. Left ankle disability The Veteran has submitted an August 2017 opinion from a podiatrist that links his current left ankle disability to his military service. This opinion, however, lacks any rationale and does not identify any in service incident related to the left ankle. Still, this opinion is sufficient to trigger VA’s duty to assist and to provide the appellant with a VA examination in order to secure an opinion addressing the etiology of this disorder. Bilateral lower extremity neuropathy The Veteran has been diagnosed with neuropathy of the lower extremities but he has not been given an appropriate VA examination. An April 2015 opinion by a VA physician’s assistant examining the appellant’s spine references neuropathy, but it does not adequately address, with a fully explanatory rationale, whether neuropathy is at least as likely as not caused or aggravated by his service connected disabilities. The April 2015 examination report also references a “CCF” neurology consultation dated December 2012 which concludes that the Veteran has idiopathic ceneralized large fiber sensorimotor poloyneuropathy. The results of this “CCF” neurological consultation are not in the Veteran’s medical records. Further examination and development are required. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records, to specifically include records related to a December 2012 neurological consult. If the AOJ cannot locate such records, the attempts that were made to locate them must be documented, and an explanation provided in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Contact the Veteran and request that he provide an appropriate authorization to VA to allow it to secure a complete unredacted and unedited copy of all treatment and examination records from the Amen Clinic. The Veteran is reminded that the duty to assist is not always a one-way street and veterans must cooperate with VA's efforts to develop their claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 3. Contact the Veteran and request that he provide an appropriate authorization to VA to allow it to secure a complete copy of all records from Drs. Zaidy (S. Zaidi, MD & Associates) and Patel (Behavior Specialists of Canton, Ohio). 4. Contact the Veteran and request that he provide an appropriate authorization to VA to allow it to secure a complete copy of all records from Dr. Bryan of Dover, Ohio. 5. Conduct a search of the National Personnel Records Center, and all other appropriate sources, for a complete copy of the appellant’s service personnel records. In particular obtain copies of the Veteran’s Chief evaluation reports and enlisted evaluation reports. If any location contacted suggests other sources, those sources must be encompassed by the search. Ensure that any copies included in the claims file are legible. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 6. After completing directives one through five, schedule the Veteran for a VA examination in connection with his claim for entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder. Following the examination, and a complete review of the record to include this remand, the VA examiner is to opine whether it is at least as likely as not that any currently diagnosed acquired psychiatric disorder, to include posttraumatic stress disorder, is related to service. If the examiner finds that the Veteran does not suffer from posttraumatic stress disorder, the examiner must address the claimant’s post-service VA treatment records indicating that he had a previous diagnosis of severe posttraumatic stress disorder. The appellant’s November 2015 lay statements must be considered and addressed in answering this query. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must 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. 7. After completing directives one through five schedule the Veteran for VA examinations by an appropriate clinician to determine the nature and etiology of any diagnosed hip, left ankle disorder and lower extremity peripheral neuropathy. For each diagnosed disability, the examiner must opine whether it is at least as likely as not that the disorder is related to an in-service injury, event, or disease. If not, the examiner must opine whether any hip, left ankle or lower extremity disorder is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond their natural progression by service-connected disability. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel