Citation Nr: 18158852 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-56 968 DATE: December 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. REMANDED Entitlement to a compensable initial rating for TBI is remanded. Entitlement to a compensable initial rating for migraine headaches associated with TBI is remanded. FINDING OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a bilateral hearing loss disability for VA compensation purposes. CONCLUSION OF LAW 1. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1102. 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1999 to May 2001, and from October 2003 to February 2005. He also had periods of National Guard service from June 2002 to July 2007. These matters come before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Muskogee, Oklahoma. [The April 2015 rating decision also denied service connection for a sleep disability and a fatigue disability; however, while the Veteran filed a notice of disagreement to those issues, he did not file a substantive appeal for them; thus, they are not for Board consideration. The Veteran also indicated in a November 2016 VA Form 9 that he wanted to appeal his allergic rhinitis rating; however, the RO had not yet issued a statement of the case on that issue. Thus, his attempt to file a substantive appeal was premature; that issue is also not for Board consideration at this time.] Legal Criteria Service Connection in general Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include bilateral hearing loss disability, listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b).   Hearing Loss Disability 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the 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. Analysis The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Entitlement to service connection for bilateral hearing loss disability The Veteran contends that he has hearing loss due to his deployment to Iraq and his military occupational specialty in field artillery. The Veteran underwent a VA examination in March 2015 which reflected that he did not have hearing loss for VA purposes in either ear. The report revealed the   relevant puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 20 30 LEFT 10 20 15 20 35 On the basis of the numbers shown above, the Veteran’s puretone threshold average for the right ear was recorded as 18.75 decibels. His puretone threshold average for the left ear was recorded as 22.5 decibels. His speech recognition ability was 96 percent for each ear using the Maryland CNC speech recognition test. The findings do not meet the criteria for a hearing loss disability for VA purposes. Moreover, the Veteran has not provided competent credible evidence (e.g. a private examination report) that he has a hearing loss disability for VA purposes. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as difficulty hearing soft voices. However, the specific issue in this case, the presence of a hearing loss disability pursuant to 38 C.F.R. § 3.385, is based on objective findings and falls outside the realm of common knowledge of a lay person. Audiometric and word recognition testing is needed to properly assess and diagnose the disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the evidence of record does not support a finding that the Veteran has had a hearing loss disability for VA purposes during his claim, thus, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to a compensable initial rating for TBI is remanded. Entitlement to a compensable initial rating for headaches associated with TBI is remanded. The Board finds that there is in inconsistency in the clinical records which warrants further development. A March 2015 VA examination for TBI reflects that the Veteran had no complaints of concentration and executive functioning. However, a June 2015 VA PTSD examination report reflects that the Veteran reported that he was prescribed a low dose of Adderall from his primary care physician, and had been taking the medication for 6 to 9 months because of problems maintaining concentration; he reported being distracted easily. In a November 2016 VA Form 9, the Veteran also asserted concentration problems. The Veteran’s disability is rated under DC 8045 which includes consideration of cognitive impairment, to include concentration impairment. Thus, the Board finds that outstanding private and VA clinical records should be associated with the claims file, and the Veteran should be scheduled for another VA examination to determine the current severity of his TBI symptoms. As this development may also address symptoms relevant to his headache claim, that claim is inextricably intertwined and will be deferred pending the requested development. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for his primary care physician who prescribed Adderall, and all treatment providers for TBI residuals. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for TBI residuals. In addition to noting all reported symptoms, the examiner should consider that the Veteran has reported having been prescribed Adderall, and discuss whether this is as likely as not due to his TBI. M.C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard