Citation Nr: 20005147 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 15-40 943 DATE: January 23, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right eye disability is remanded. FINDING OF FACT The Veteran does not have a current hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385, 4.85. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1981 to April 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for his requested Board hearing in February 2019 and June 2019. However, he did not report for the hearings, did not offer good cause for not reporting, and has not since requested a new hearing. Thus, this request is deemed withdrawn. 38 C.F.R. § 20.704(d). 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran attributes his bilateral hearing loss to flight line noise during service. See May 2014 VA Form 21-4138; October 2015 VA Form 9. Upon review of the evidence in the record, the Board finds that service connection for bilateral hearing loss is not warranted because the record fails to reflect that the Veteran has been diagnosed with hearing loss for VA purposes in either the left or right ear at any point just prior to or during the appeal period beginning in February 2013. In this regard, at the August 2014 VA audiological examination, the Veteran had Maryland CNC speech recognition scores of 96 percent in both ears. For the right ear, he had auditory thresholds of 15 decibels (dB) at 500 hertz (Hz), 10 dB at 1000 Hz, 15 dB at 2000 Hz, 15 dB at 3000 Hz, and 15 dB at 4000 Hz. His left ear auditory thresholds were 15 dB at 500 Hz, 15 dB at 1000 hertz, 10 dB at 2000 Hz, 15 dB at 3000 Hertz, and 15 dB at 4000 Hz. Service connection may not be established for a disability due to impaired hearing, unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the August 2014 VA examination report shows that the Veteran’s hearing loss for each ear does not meet these criteria, and there are no other VA-compliant examination reports dated just prior to or during the appeal period. 38 C.F.R. § 4.85(a). To the extent the Veteran asserts that he has bilateral hearing loss for VA purposes, the Board finds that he is not competent to do so, as such a diagnosis is based upon audiometric testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, he does not have an impaired hearing disability for VA purposes, and service connection for bilateral hearing loss must be denied on this basis. See 38 C.F.R. §§ 3.303, 3.385. Thus, as the first element of service connection is not met at any point during the appeal period, the claim fails on this basis alone. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). REASONS FOR REMAND 2. Entitlement to service connection for a right eye disability is remanded. The Veteran asserts that his current right disability is due to in-service surgical removal of a cyst near his right eye in December 1982. See May 1982, November 1982, December 1982 service treatment records (STRs); see also May 2014 VA Form 21-4138; see also October 2015 VA Form 9. July 2014 VA treatment records note the Veteran had a small cyst inferolateral to the right orbit. In July 2014, the Veteran was afforded a VA examination for his claimed right eye disability, which revealed 20/70 corrected visual acuity in the right eye, as well as diagnoses of conjunctival melanosis, a cyst below the lower eyelid, slight nuclear sclerosis and likely epi-retinal membrane. The examiner opined that the right eye vision loss was “of unknown etiology” and less likely due to the cyst from service. See Id. The July 2014 examiner did not provide any rationale for this conclusion, nor did he provide opinions for all diagnosed disabilities affecting the right eye. Thus, the Board finds that an addendum opinion is warranted on remand. Any outstanding treatment records should also be secured. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. After obtaining the requested records (to the extent possible), obtain an addendum opinion from the July 2014 examiner, or another examiner if unavailable, to address the nature and etiology of the Veteran’s right eye disabilities. No additional examination of the Veteran is needed, unless the examiner determines otherwise. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner. The examiner is requested to address the following: (a.) Identify the diagnoses of any disabilities in the right eye present since February 2013, explaining whether any diagnosis constitutes a refractive error. (b.) For any diagnosis in either eye that is considered a refractive error, opine whether it is at least as likely as not (50 percent or greater probability) that there was a superimposed injury or disease during service that resulted in additional disability of the right eye? Please address the December 1982 cyst removal, and consider the Veteran’s statements that he noticed eye problems about a year after his surgery that have progressed since that time. See May 2014 VA Form 21-4138. (c.) For any non-refractive error diagnosis, including but not limited to (1) conjunctival primary acquired melanosis, (2) a cyst below the right lower eyelid, (3) slight nuclear sclerosis, (4) epi-retinal membrane, please opine as to whether it is at least as likely as not related to an in-service injury, event, or disease, including the December 1982 cyst removal. Please consider the Veteran’s statements that he noticed eye problems about a year after his surgery that have progressed since that time. See May 2014 VA Form 21-4138. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ramirez, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.