Citation Nr: 20020366 Decision Date: 03/19/20 Archive Date: 03/19/20 DOCKET NO. 10-29 565 DATE: March 19, 2020 ORDER Entitlement to service connection for a left ear hearing loss disability is granted. REMANDED Entitlement to a rating in excess of 10 percent for residuals of a left shoulder dislocation, status post Bankart reconstruction with traumatic arthritis for the period prior to December 6, 2011 and from March 1, 2012 to January 18, 2016 is remanded. Entitlement to a rating in excess of 20 percent for residuals of a left shoulder dislocation, status post Bankart reconstruction with traumatic arthritis for the period since January 19, 2016 is remanded. FINDING OF FACT The Veteran has a current left ear hearing loss disability for VA compensation purposes that is consistent with his in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for a left ear hearing loss disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to November 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Notably, in a rating decision in May 2012, the RO granted a total disability rating due to surgery necessitating at least one month of convalescence from December 6, 2011 until February 29, 2012. The Board notes that because the 100 percent rating assigned to the Veteran’s service-connected left shoulder disability is the maximum rating available for this disability, a higher rating claim for a left shoulder disability for the time period from December 6, 2011 to February 29, 2012 is not on appeal. In September 2017, the Board remanded these issues for additional development. An August 2019 rating decision granted an increased rating of 20 percent for the Veteran’s service-connected left shoulder disability, effective January 19, 2016. The Board notes that the increase from 10 to 20 percent for the left shoulder disability did not constitute a full grant of the benefits sought. Accordingly, the issue of entitlement to a rating in excess of 20 percent for the period since January 19, 2016 for a left shoulder disability remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as sensorineural hearing loss is through a demonstration of continuity of symptomatology. 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 Tests are less than 94 percent. 38 C.F.R. § 3.385. Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis As noted in the September 2017 remand, the Veteran has properly perfected the claim of entitlement to service connection for residuals of a left ear injury. In a rating decision in February 2017 the RO granted service connection for residuals of a right ear injury and, in doing so, noted that the Veteran’s initial claim of service connection for the left ear identified the incorrect ear. However, throughout the appeal period, the Veteran had been claiming service connection for residuals of an injury to his left ear including the Veteran’s representative in a brief in June 2017 listing the Veteran’s claim of service connection for a left ear injury as being on appeal. Notably, in a March 2020 Appellant’s Brief, the Veteran’s representative clarified that the Veteran did in fact intend for this to be a claim for service connection for residuals of a right ear injury as opposed to a claim for service connection involving the left ear. As noted above, the Veteran is already service-connected for residuals of a right ear injury. Regardless, the Board will still adjudicate the Veteran’s claim for residuals of a left ear injury disability in order to afford the Veteran the opportunity to receive the maximum compensation he is warranted. In addition, while the Veteran does not contend that he has a scar of the left ear, as instructed by the September 2017 Board remand, development has taken place regarding a left ear hearing loss disability as the record demonstrates that a November 2009 physician noted that the Veteran was a truck driver both during service and as a civilian and that truck drivers do have a tendency to have asymmetrical left ear hearing loss. In the July 2010 Form 9 Appeal the Veteran stated that during service in late summer of 1986 he incurred a traumatic injury to his left ear at Fort Bragg, when his ear was nearly torn off and suturing was needed. While the Veteran’s service treatment records reflect a right ear injury, the service treatment records are negative for complaints, treatments or diagnoses of a left ear injury to include left ear hearing loss. Audiometric testing on a July 1984 enlistment audiogram revealed pure tone thresholds, obtained by air conduction, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 5 10 LEFT 20 30 20 20 25 A November 2006 VA treatment record noted that the Veteran reported not being able to hear very well out of his left ear. A March 2008 VA audiology treatment record noted that the Veteran had normal hearing through 4000Hz sloping to symmetrical sensorineural hearing loss. Notably, speech discrimination scores were 94 percent in the right ear and 84 percent in the left ear. An April 2009 VA audiology consult noted that the Veteran had mild sensorineural hearing loss through 4000Hz sloping to moderate sensorineural hearing loss in the left ear with poor word discrimination. Notably, speech discrimination scores were 96 percent in the right ear and 60 percent in the left ear. A November 2009 VA treatment records show that the Veteran had decreased hearing in his left ear and a history of trauma when his left ear was elbowed during a baseball game requiring sutures. The physician noted that the Veteran was a truck driver both during service and as a civilian and that truck drivers do have a tendency to have asymmetrical left ear hearing loss. The Veteran’s DD 214 Form shows that he was a cargo specialist during service. Per the September 2017 Board remand instructions, the Veteran underwent a VA examination in June 2018. The examiner noted that the Veteran had a scar behind his right ear but no other ear injuries or deformities. Per the September 2017 Board remand instructions, the Veteran underwent a VA examination in July 2018. The examiner noted that test results on the audiogram were not valid as the subjective, behavioral results provided by the Veteran were not reliable or consistent. The examiner opined that it was less likely than not that the Veteran’s claimed left ear hearing loss was related to his in-service noise exposure as he noted that the Veteran had a complete audiological examination conducted by the VA in March 2008 which showed normal hearing for adjudication purposes. Per the September 2017 Board remand instructions, the Veteran underwent a VA audiological examination in November 2019. Audiometric testing in November 2019 revealed pure tone thresholds, obtained by air conduction, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 30 30 35 LEFT 25 20 25 25 40 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The examiner opined that it was less likely than not that the Veteran’s left ear hearing loss was caused by or the result of an in event in military service. The examiner noted that the Veteran’s hearing was normal upon enlistment and no separation audiogram was located. The examiner also noted that audiograms from 2008 to 2009 both indicated that hearing sensitivity was within normal limits for adjudication purposes. As a result, the examiner found that it was less likely than not that the Veteran’s left ear hearing loss was incurred during his service. The record shows that the Veteran currently has bilateral hearing loss for VA compensation purposes. Accordingly, the first element of evidence of a current disability is accordingly met. Therefore, the question to be decided in the present appeal is whether the current left ear hearing loss disability is associated with the Veteran’s active duty. In this regard, the Board acknowledges that service treatment records are negative for complaints of, treatment for, or findings of hearing loss. However, when considering the circumstances of the Veteran’s service, he was undoubtedly exposed to some noise in service. As noted above, the Veteran does not have a scar of the left ear as his representative clarified that the residuals of an in-service injury to include a scar occurred on his right ear and not his left ear. However, after resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for left ear hearing loss is warranted. In support of this conclusion, the Board notes that the Veteran has described his specific in-service noise exposure. Notably, the Veteran is already currently service connected for bilateral tinnitus based on his military in-service noise exposure. The fact that the Veteran has been diagnosed as having tinnitus as a result of his in-service noise exposure and granted compensation for tinnitus adds to the credibility of the Veteran’s contention that his left ear hearing loss disability is related to service because “an associated hearing loss is usually present” with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Further, tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. With regard to the latter, the evidence of record reflects that the Veteran’s tinnitus is noise-induced, i.e., a result of his exposure to acoustic trauma during service. In this regard, the Board notes that “high frequency tinnitus usually accompanies [noise-induced] hearing loss.” The Merck Manual, Section 7, Ch. 85, Inner Ear. Additionally, the Board notes that the June 2018 and November 2019 VA examiners appear to have based their negative opinions in large part on the absence of documented left ear hearing loss more than 20 years after service. Notably, the June 2018 VA examiner indicated that the Veteran had a complete audiological examination conducted by the VA in March 2008 which showed normal hearing for adjudication purposes while the November 2019 VA examiner also noted that audiograms from 2008 to 2009 both indicated that hearing sensitivity was within normal limits for adjudication purposes. However, the Board notes that the March 2008 VA audiology treatment record noted that the Veteran had a speech discrimination score of 84 percent in the left ear while the April 2009 VA audiology consult noted that the Veteran had a speech discrimination score of 60 percent in the left ear which demonstrates hearing loss for VA compensation purposes. The Board notes that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461(1993). As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran had a current left ear hearing loss disability that was caused by his service. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a left ear hearing loss disability is granted. See 38 U.S.C. § 5107(b). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the remaining claims on appeal. The Board notes that a remand is necessary due to the submission of additional evidence which requires the issuance of a Supplemental Statement of the Case (SSOC). Notably, the additional evidence includes VA treatment records as well as a June 2018 VA examination conducted in conjunction with the September 2017 Board remand instructions that took place since the last SSOC issued in February 2017. The additional evidence submitted since the last SSOC contains pertinent findings related to the Veteran’s claims. Additionally, the Board notes that in its September 2017 remand, the Board specifically instructed the AOJ to readjudicate the claim on appeal and if any benefit sought was not granted and to issue the Veteran and his representative an SSOC. However, again no such SSOC was issued with respect to the issues of entitlement to higher ratings for a left shoulder disability. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, in light of the fact that it was expressly requested that an SSOC be issued with respect to this claim following all requested development, and the claims file does not contain any such SSOC following the requested development, the Board finds that VA has not substantially complied with the remand directives. Consequently, a new remand is required to comply with the holding of Stegall. The matters are REMANDED for the following action: Issue an SSOC pertaining to the Veteran’s claim. The matters should then be returned to the Board for appropriate appellate review, if otherwise in order [ MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.