Citation Nr: 18158415 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 18-36 660 DATE: December 14, 2018 ORDER Service connection for bilateral hearing loss is denied. REMANDED The claim of entitlement to service connection for tinnitus is remanded. The claim of entitlement to service connection for a sleep disorder is remanded. The claim of entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. The claim of entitlement to service connection for left lower extremity radiculopathy is remanded. The claim of entitlement to service connection for right lower extremity radiculopathy is remanded. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for bilateral hearing loss Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, “[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.” Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service incurrence or aggravation of diseases of the central nervous system (e.g., hearing loss) may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran’s discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered 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. The Board notes that since the issuance of a January 2018 statement of the case (SSOC), additional VA treatment records have been added to the Veteran’s claims file. However, these records are either cumulative or not relevant to this issue. Thus, the Board has concluded that it may proceed with appellate consideration of these issues without prejudice to the Veteran. See 38 C.F.R. § 19.31 (2017). Service personnel records indicate that the Veteran served as a wheeled vehicle repairer. Service treatment records reflect that on examination for transfer from the National Guard to the regular Army in May 1995, audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 10 LEFT 10 5 10 10 5 Audiometric examination in October 1995 revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 15 5 LEFT 10 5 10 5 10 On separation examination in March 1998, the following puretone thresholds were elicited: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 10 5 LEFT 5 5 0 5 0 On VA examination in March 2017, the Veteran’s history was reviewed. Audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 20 20 LEFT 10 15 20 20 20 Speech discrimination scores were 100 percent bilaterally. The examiner indicated that the Veteran’s hearing was normal. Having reviewed the record, the Board concludes that service connection for bilateral hearing loss is not warranted. In this case, the record does not demonstrate hearing loss that is a disability for VA compensation purposes. The Board observes that the evidence does not reflect puretone thresholds at 40 or greater in any relevant frequency, or 26 or greater in three or more relevant frequencies, or speech recognition scores less than 94 percent. As noted, VA regulations require that hearing loss be reported at a certain level before it will be considered a disability for compensation purposes. In this case, the record does not demonstrate that the Veteran has bilateral hearing loss disability as defined by VA regulations. In the absence of proof of a present disability as defined by VA regulations, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Accordingly, the claim of entitlement to service connection for bilateral hearing loss must be denied. REASONS FOR REMAND 1. Service connection for tinnitus The Veteran seeks service connection for tinnitus. The Board notes that, while service connection for bilateral hearing loss is not warranted, the Veteran is in receipt of VA disability benefits for residuals of a traumatic brain injury, to include headaches and peripheral vestibular disorder, as the result of an assault in service. An opinion should be obtained to determine whether the Veteran’s tinnitus is related to the in-service traumatic brain injury or to its residuals. 2. Service connection for a sleep disorder The Veteran seeks service connection for a sleep disorder. Service treatment records indicate that the Veteran reported difficulty getting to sleep in March 1998. He also endorsed depression. On VA examination in March 2017, the examiner concluded that there was no diagnosis of a mental disorder. She indicated that she could furnish no opinion regarding sleep disturbance or disorder because there was no diagnosis of a psychiatric disorder on Axis I. Since then, a June 2017 outpatient record indicates a diagnostic impression of unspecified anxiety disorder, rule out generalized anxiety disorder. A March 2018 VA examination report indicates unspecified depressive disorder and unspecified anxiety disorder. These records do not address whether there is a sleep disorder that is separate and distinct from these diagnoses. In light of these psychiatric diagnoses, the questions of whether there is a distinct sleep disorder, and if so, whether it is related to complaints in service, must be addressed. 3. Service connection for GERD A statement of the case (SOC) was issued in January 2018. The Agency of Original Jurisdiction (AOJ) noted that it had reviewed VA outpatient records through September 10, 2017. However, the AOJ subsequently developed additional evidence in this case, to include relevant VA outpatient records including a gastrointestinal consultation and testing in January 2018. No supplemental statement of the case was provided to the Veteran pursuant to 38 C.F.R. § 19.31 (2017). The Veteran should be provided with a SSOC regarding this issue. 4. Service connection for left lower extremity radiculopathy 5. Service connection for right lower extremity radiculopathy The Veteran is in receipt of VA disability benefits for a low back disability, and asserts that he has neurological manifestations in his lower extremities related to that disability. A July 2017 VA record indicates testing was negative for radiculopathy and positive for posterior rami irritability. The provider noted that aside from the negative testing, the Veteran presented with clinical signs of right radiculopathy as well as MRI remarkable for a disc bulge. A VA examiner indicated in October 2017 that sensory examination was normal and there was no radiculopathy, he also acknowledged that electrodiagnostic testing in June 2017 was abnormal, with findings of posterior rami irritability at L2-5 which did not fulfill the criteria for a lumbosacral radiculopathy. A January 2018 VA record indicates that the Veteran was followed for back pain and lumbar radiculopathy, and that he had undergone an epidural block. As there is conflicting evidence regarding the presence of radiculopathy, and there appear to be other neurological symptoms in the Veteran’s lower extremities, the Board concludes that an examination should be conducted to determine whether the Veteran has neurological manifestations that are related to his service-connected low back disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his tinnitus. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to provide an opinion regarding whether it is at least as likely as not that tinnitus was incurred in, or is otherwise related, to active service, to include acoustic trauma and traumatic brain injury therein. The examiner is also asked to provide an opinion regarding whether it is at least as likely as not that tinnitus was caused or aggravated (worsened beyond normal progression) by a service-connected disability, to include the Veteran’s traumatic brain injury residuals. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for an examination to determine whether there is a sleep disorder, and if so, its etiology. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to indicate whether the Veteran has a sleep disorder. If so, the examiner should provide an opinion regarding whether it is at least as likely as not that any diagnosed sleep disorder was incurred in, or is otherwise related, to service. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for an examination to determine whether there are neurological manifestations of the Veteran’s service-connected lumbar spine disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to identify all neurological symptoms present in the Veteran’s lower extremities. The examiner should then provide an opinion regarding whether it is at least as likely as not that any such neurological symptom is the result of, or aggravated by, the Veteran’s service-connected low back disability. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Issue a supplemental statement of the case regarding all remanded issues, to include the issue of entitlement to service connection for GERD. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel