Citation Nr: 18155950 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 10-34 467 DATE: December 6, 2018 ORDER Service connection for a left arm disorder is denied. Service connection for a neck disorder is denied. Service connection for right ear hearing loss is denied. An initial compensable disability rating for left ear hearing loss is denied. REMANDED The claim of entitlement to service connection for a left hip disorder is remanded. The claim of entitlement to service connection for a lumbar spine disorder is remanded. The claim of entitlement to service connection for migraine headaches is remanded. The claim of entitlement to service connection for an acquired psychiatric disorder is remanded. The claim of entitlement to an initial disability rating greater than 20 percent for degenerative arthritis, status post acromioclavicular joint injury, left shoulder is remanded. The claim of entitlement to an initial disability rating greater than 10 percent for chronic left knee strain is remanded. FINDINGS OF FACT 1. The available medical evidence does not demonstrate that the Veteran has, or at any pertinent point during the current appeal period has had, a diagnosis of a left arm disorder. 2. The available medical evidence does not demonstrate that the Veteran has, or at any pertinent point during the current appeal period has had, a diagnosis of a neck disorder. 3. The available medical evidence does not demonstrate that the Veteran has, or at any pertinent point during the current appeal period has had, a diagnosis of right ear hearing loss disability as defined by VA regulations. 4. The Veteran has no more than Level I hearing loss in the left ear, evaluated as non-compensable. CONCLUSIONS OF LAW 1. The criteria for service connection for a left arm disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a neck disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. The criteria for an initial compensable disability rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.385, 4.1-4.7, 4.21, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2007 to January 2008. These matters come before the Board of Veterans’ Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In the Veteran’s August 2010 substantive appeal, the Veteran requested a Board hearing. He was scheduled for a Board hearing in November 2018 and was provided notice of this hearing in August and October 2018. However, the Veteran failed to report for the scheduled hearing without explanation or an attempt to reschedule. Therefore, no further development with regard to a hearing is necessary. 38 C.F.R. § 20.702. Service Connection Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a relationship between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Left arm and neck disorders The Veteran contends that service connection is warranted for left arm and neck disorders. However, it is unclear why the Veteran believes service connection for left arm and/or neck disorders is warranted. A review of the Veteran’s available service treatment records show treatment for a left shoulder disorder (for which the Veteran is already service connected), however they are negative for complaints regarding the left arm and/or neck. The Veteran submitted an initial claim for service connection for various disabilities, including left arm, shoulder, and neck disabilities in December 2008. In connection with this claim, the Veteran was afforded a VA general examination in January 2009. At the time of this examination, the Veteran denied experiencing a left arm disorder and reported that this claim pertained to his left shoulder disability in that the pain from his left shoulder radiated to the left arm. He denied any specific injury or symptoms pertaining to the left arm itself. With regard to the neck, the examiner wrote that the Veteran did not report any symptoms pertaining to his neck. The pain that he was claiming was in the upper back, located between the shoulder blades, primarily on the left. The question for the Board is whether the Veteran has a current left arm/neck disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this case, the Board concludes that the Veteran does not have a current diagnosis of a left arm/neck disorder 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, 1131, 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). While the Veteran has reported left arm/neck pain, this pain has been attributed to the Veteran’s left shoulder and thoracic/lumbar spine disabilities. Furthermore, pain (absent functional loss resulting in impairment in earning capacity) is not a disability for which VA compensation can be awarded. See Saunders v. Wilkie, 886 F.3d 1356 (Fed, Cir. 2018). Also, while the Veteran believes he has a current diagnosis of a left arm/neck disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for left arm and/or neck disorders. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Right ear hearing loss The Veteran contends that service connection is warranted for right ear hearing loss. Specifically, the Veteran contends that he was exposed to loud noises during his active service and that such resulted in current hearing loss. Significantly, the Veteran is service connected for left ear hearing loss. For the purposes 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, 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. As an initial matter, the Board finds that the Veteran’s allegations regarding his in-service noise exposure to be competent and credible. Significantly, the Veteran was treated for left ear hearing loss during service. Therefore, the Board acknowledges that the Veteran was exposed to loud noise in service. While the Veteran’s service treatment records show left ear hearing loss they are negative for right ear hearing loss. Significantly, a May 2007 audiological examination shows the following puretone thresholds: Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 dB 15 dB 15 dB 15 dB Left Ear 15 dB 30 dB 35 dB 30 dB In January 2008, the Veteran submitted an initial claim for service connection for bilateral hearing loss. In connection with such claim, he was afforded a VA audiological examination in January 2009. This examination revealed the following puretone thresholds: Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 dB 20 dB 20 dB 20 dB Left Ear 20 dB 35 dB 45 dB 35 dB   Speech Recognition Right Ear 100% Left Ear 100% The Veteran was afforded a second VA audiological examination in September 2013. This examination revealed the following puretone thresholds: Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 dB 20 dB 20 dB 20 dB Left Ear 25 dB 40 dB 50 dB 45 dB Speech Recognition Right Ear 100% Left Ear 96% The Veteran was afforded a third VA audiological examination in October 2014. This examination revealed the following puretone thresholds:   Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 dB 25 dB 25 dB 25 dB Left Ear 25 dB 40 dB 50 dB 45 dB Speech Recognition Right Ear 100% Left Ear 100% Significantly, neither the January 2009, September 2013, nor the October 2014 hearing thresholds meet the criteria for right ear hearing loss disability under VA regulations. Based on the foregoing, the Board finds that the Veteran does not have a current right ear hearing disability loss under 38 C.F.R. § 3.385 as audiometric testing fails to reveal that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater or that the auditory threshold in at least three frequencies are 26 decibels or greater; or that the speech recognition score using the Maryland CNC Test are less than 94 percent. In this regard, in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In this case, there is no indication that the Veteran has ever met the criteria for a diagnosis of right ear hearing loss pursuant to 38 C.F.R. § 3.385. While the Veteran believes he has a current diagnosis of right ear hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. “Staged ratings” or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once disability is established, levels of hearing loss are determined by considering the average pure tone threshold and speech discrimination percentage scores. 38 C.F.R. § 4.85(b). See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). The provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing loss. The exceptional patterns addressed in this section are present when the puretone threshold at each of the 4 specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. In January 2008, the Veteran submitted an initial claim for service connection for bilateral hearing loss. In connection with such claim, he was afforded a VA audiological examination in January 2009. This examination revealed the following puretone thresholds: Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 dB 20 dB 20 dB 20 dB Left Ear 20 dB 35 dB 45 dB 35 dB Speech Recognition Right Ear 100% Left Ear 100% The Veteran was afforded a second VA audiological examination in September 2013. This examination revealed the following puretone thresholds:   Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 dB 20 dB 20 dB 20 dB Left Ear 25 dB 40 dB 50 dB 45 dB Speech Recognition Right Ear 100% Left Ear 96% The Veteran was afforded a third VA audiological examination in October 2014. This examination revealed the following puretone thresholds: Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 dB 25 dB 25 dB 25 dB Left Ear 25 dB 40 dB 50 dB 45 dB   Speech Recognition Right Ear 100% Left Ear 100% Initially, the Board notes that the Veteran is not service connected for right ear hearing loss. While service connection is not in effect for the right ear, pursuant to 38 C.F.R. § 4.85(f), if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation of I, subject to the provisions of 38 C.F.R. § 3.383. In the present case, the evidence does not show an exceptional level of impaired hearing; 38 C.F.R. § 4.86 is not applicable because the puretone threshold at each of the 4 specified frequencies (1000, 2000, 3000 and 4000 Hz) is not 55 decibels or more, nor is the puretone threshold 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. Applying the results from the January 2009, September 2013, and October 2014 VA audiological examinations to Tables VI yields a Roman numeral value of I for the left ear. See 38 C.F.R. §§ 4.85, 4.86. Applying these values to Table VII, the Board finds that the Veteran’s hearing loss warrants a noncompensable evaluation. The tables referred to above were provided to the Veteran in the Statement of the Case dated in July 2010. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a compensable disability rating for bilateral sensorineural hearing loss. 38 C.F.R. § 4.3. Significantly, the January 2009, September 2013, and October 2104 VA audiological examinations show that the Veteran’s left ear hearing loss warrants a noncompensable evaluation. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Such functional impairment has been appropriately considered but the overall evidence, as previously discussed, fails to support assignment of a compensable disability rating. Specifically, a review of the October 2014 VA audiological examination reflects that the examiner (an audiologist) found that there were functional effects of the Veteran’s hearing loss, noting that the Veteran’s hearing loss made it difficult for him to do things like cross the street, where he almost got hit twice; made it difficult for him to communicate with co-workers; and made him turn up the volume on his television to the point where his neighbors commented on the noise. While the Veteran understandably has problems hearing, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Hence, the rating criteria contemplate the Veteran’s symptomatology. REASONS FOR REMAND 1. Left hip, lumbar spine, migraine headaches, and an acquired psychiatric disorder With regard to the left hip, lumbar spine, migraine headaches, and psychiatric disorder claims, a January 2009 VA general examination report shows diagnoses of chronic left hip strain, chronic lumbar spine strain with 4th lumbar vertebrae L4 avulsion fracture and possible 1st lumbar vertebrae compression fracture, and migraine headaches. VA treatment records show diagnoses of bursitis of the left hip as early as February 2011 and diagnoses of depressive disorder, bipolar disorder, and personality disorders as early as March 2012. As such, there is evidence of current disability with regard to these claims. However, there is no evidence of any in-service complaints regarding the left hip, lumbar spine, migraine headaches and/or psychiatric problems in the available service treatment records (STRs). A review of the record includes only two STRs, a May 2007 audiological examination and a January 2008 X-ray report regarding the left shoulder. A September 2014 PIES (Personnel Information Exchange System) request shows that the Veteran’s STRs are not at the National Personnel Records Center (NPRC). However, there is no indication in the record that the agency of original jurisdiction (AOJ) attempted to contact any other potential repositories for the requested information, such as the VA Records Management Center (RMC) or U.S. Joint Services Records Research Center (JSRRC). Accordingly, on remand the AOJ must make as many requests as necessary to obtain the Veteran’s STRs until the AOJ determines that either the records do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159. 2. Left shoulder and left knee With regard to the left shoulder and left knee issues, the Veteran was last afforded VA examinations for these disabilities in October 2014 and August 2017. While these examinations reports show range of motion findings for both shoulder/knees, they do not indicate whether the findings were on both active and passive motion and/or in weight-bearing and nonweight-bearing. During the pendency of this appeal, a new precedential opinion that directly affects this case was issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Unfortunately, neither the October 2014 nor the August 2017 VA examination reports comply with Correia. Accordingly, the Veteran must be afforded new VA examinations to correct the deficiencies noted above. Also, given the need to remand for other reasons all outstanding VA treatment records dated since March 2015 should be obtained on remand. The matters are REMANDED for the following action: 1. Contact any appropriate source(s), to specifically include the VA RMC and JSRRC to obtain any STRs related to the Veteran’s active duty service from May 2007 to January 2008. In making any request, clearly identify the source(s) contacted. All records and/or responses received should be associated with the claims file. Follow the procedures set forth in 38 C.F.R. § 3.159 (c)(2) with respect to requesting records from Federal facilities. Continue efforts to obtain these records until either the evidence/information is received, or until specific information that the evidence/information sought does not exist or that further efforts to obtain it/them would be futile is obtained. If the records cannot be obtained after reasonable efforts have been made, issue a formal determination in this regard, and notify the Veteran of the inability to obtain the records. 2. Obtain all outstanding VA treatment records dated from March 2015 to the present. 3. Arrange for the Veteran to undergo VA examinations for evaluation of his left shoulder and left knee disabilities. The examiner should test the range of motion (using a goniometer) in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joints in question in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs