Citation Nr: 1806710 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-06 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to an initial rating in excess of 10 percent for lumbar spine strain. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his parents ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from January 2010 to December 2011 with an earlier period of active duty for training from November 2008 to April 2009. This matter comes before the Board of Veterans' Appeals (Board) from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in May 2016. In September 2016, the Board denied increased rating claims for left knee sprain, left knee instability, and posttraumatic stress disorder (PTSD), and granted a total disability rating based upon individual unemployability (TDIU). The service connection claim for hearing loss and the increased rating claim for a back disability were remanded for additional development. The decision below addresses the hearing loss claim. The lumbar spine claim is addressed in the remand section following the decision. FINDING OF FACT Hearing loss for VA compensation purposes is not shown. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). As detailed in the Board's September 2016 decision, the Veteran's service treatment and personnel records have been obtained, to the extent available. The Board notes that a January 2013 VA MEMORANDUM reflects a Formal Finding on the Unavailability of complete Service Records. Where a portion of the Veteran's service treatment records (STRs) are unavailable, there is a heightened obligation for VA to explain findings and to carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). I. Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For 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. Analysis The Veteran seeks entitlement to service connection for hearing loss, to include as a result of weapons firing, blasts, and heavy equipment transporters during service in the Southwest Theater of Operations. The Board notes that the March 2013 rating decision reflects service connection has been established for tinnitus due to noise exposure during service. A December 2010 Post Deployment Health Assessment reflects that the Veteran denied trouble hearing. Hearing Conservation Data forms show that the Veteran did not meet the criteria for hearing impairment under 38 C.F.R. § 3.385 in November 2008, October 2009, December 2010, and May 2012. None of the auditory thresholds in any of the relevant frequencies was greater than 15 decibels. In addition, VA treatment records in September 2013 reflect he denied any change in hearing in May 2013, and hearing was reported to be normal, bilaterally. In addition, a July 2013 record notes no decreased hearing. VA records in August 2014 include a May 2014 record noting no change in hearing in. Moreover, and although not bound by a determination of the Social Security Administration (SSA), the Board notes that the December 2012 SSA determination does not reflect that the Veteran meets the criteria for a hearing loss disability for VA purposes. The SSA disability determination was based upon psychiatric disorders and sprains/strains. As noted by the Board in the September 2016 decision, an earlier VA examination in February 2013 did not show hearing loss for VA purposes. Pursuant to the Board's remand, the Veteran underwent a more recent January 2017 VA examination. Although the puretone threshold and speech discrimination numbers appear "worse," compared to the February 2013 examination, the results continue to show that hearing loss for VA purposes is no shown under 38 C.F.R. § 3.385. Because a current disability has not been shown for the claimed hearing loss, service connection is not warranted as the current disability element must be met for service connection to be substantiated. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board accepts that the Veteran was exposed to loud noise during service and he is competent to report his symptoms. However, he is not shown to have medical expertise regarding a diagnosis of hearing loss for VA compensation purposes, and thus, his opinion is not competent in this respect as it is based on clinical testing. The competent evidence does not establish that the Veteran has had hearing loss for VA compensation purposes during service or within one year of separation or at any time during the appeal period. As such, the preponderance of the evidence is against the claim of service connection for hearing loss and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for hearing loss is not warranted. ORDER Service connection for hearing loss is denied. REMAND A VA examination of the back was conducted in January 2017 pursuant to the Board's September 2016 remand. At the examination, the Veteran reported flare-ups. The examiner noted that the examination was not being conducted during a flare-up. Although pain on flare-up was noted and the examiner stated that the factors causing functional loss were based on the Veteran's statements, in response to whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups, the examiner indicated that a finding in that respect would require resorting to speculation. However, pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), a VA examiner has the obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. Accordingly, a new VA examination of the back is warranted. Accordingly, this issue is REMANDED for the following actions: 1. Schedule a VA examination by an appropriate medical professional to assess the current severity of the Veteran's service-connected lumbar spine disability. (a) All indicated testing should be performed, including range of motion studies in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to provide such an opinion, he or she should clearly explain the basis for that conclusion. (b) Considering the Veteran's reported history, please provide an opinion describing functional impairment of the lumbar spine due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, to what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A rationale for all opinions expressed should be provided. 3. Finally, readjudicate the issue remaining on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs