Citation Nr: 20021059 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 11-15 580 DATE: March 24, 2020 ORDER Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for service-connected thoracic scoliosis and lumbar spine lordosis is remanded. FINDING OF FACT The Veteran does not have a left ear hearing loss disability meeting the criteria of 38 C.F.R. § 3.385. CONCLUSION OF LAW The criteria for service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Army from May 1988 to May 1992. This matter is on appeal from an August 2010 rating decision. The Veteran was afforded a hearing with the undersigned Judge in September 2012. A transcript of the hearing has been associated with the record. The Board remanded this appeal in May 2014, September 2017, November 2018 and February 2020 for further development. In September 2017, the Board denied the Veteran’s claim for evaluation in excess of 20 percent for the Veteran’s service-connected thoracic scoliosis and lumbar spine lordosis. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court found the Board relied on an inadequate examination in making their determination as well as provide an inadequate statement of reasons or bases. The Court issued a May 2018 joint motion for remand (JMPR) vacating the September 2017 Board decision and remanded the appeal for re-adjudication. The Board notes that in a November 2018 remand, the issues remanded in this decision were for entitlement to an evaluation in excess of 20 percent for thoracic spine scoliosis and lumbar spine lordosis; entitlement to an evaluation in excess of 30 percent for a cervical spine disability; entitlement to an evaluation in excess of 40 percent for a right upper extremity radiculopathy; entitlement to an evaluation in excess of 30 percent for a left upper extremity radiculopathy; entitlement to an evaluation in excess of 10 percent for a right knee disability; entitlement to an evaluation in excess of 10 percent for a left knee disability; entitlement to service connection for bilateral hearing loss; and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In a February 2020 rating decision, service connection for tinnitus, right ear hearing loss and entitlement to TDIU was granted. A February 2020 Board decision remanded the issues of entitlement to an evaluation in excess of 30 percent for a cervical spine disability; entitlement to an evaluation in excess of 40 percent for a right upper extremity radiculopathy; entitlement to an evaluation in excess of 30 percent for a left upper extremity radiculopathy; entitlement to an evaluation in excess of 10 percent for a right knee disability; and entitlement to an evaluation in excess of 10 percent for a left knee disability were remanded for further development. As these issues are currently on remand, they are not before the Board for adjudication at this time. As such, the issues on appeal before the Board at this time are for entitlement to an evaluation in excess of 20 percent for thoracic spine scoliosis and lumbar spine lordosis and for service connection for left ear hearing loss. Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). 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 above 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. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Service connection for chronic diseases listed in 38 U.S.C. sections 1101 (3) and 38 C.F.R. § 3.309 (a), such as bilateral sensorineural hearing loss, may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). When evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole. See Evans v. West, 12 Vet. App. 22, 26 (1998). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Left ear hearing loss The Veteran contends that his left ear hearing loss is related to his active duty service. At his September 2012 hearing, the Veteran testified that his duties as a petroleum fueler for tanks exposed him to acoustic trauma resulting in hearing loss. The Veteran was afforded a VA examination in January 2010. Puretone threshold levels in decibels were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 25 30 35 60 38 LEFT 20 15 20 20 19 Maryland CNC testing was 96 percent for the right ear and 86 percent for the left ear. The examiner found the Veteran’s left was within normal limits with good speech recognition ability. The examiner opined the Veteran’s current hearing loss was “conductive and will likely improvement with medical treatment.” The examiner recommended the Veteran’s external and middle ears be medically evaluated and then later reevaluate his hearing. The examiner did not provide an opinion on the etiology of the Veteran’s hearing loss in relation to his service. The Board notes at the Veteran’s September 2012 hearing, the Veteran testified that he had temporary blockage in his ears at the time of the January 2010 VA examinations. The Veteran stated that after his ears were flushed out and reevaluated, it was determined that he had hearing loss. As the January 2010 VA examiner indicated the Veteran’s hearing loss may be related to an infection or blockage at the time of hearing and would require later evaluation as well as not providing an opinion whether the hearing loss is related to the Veteran’s active duty service, the Board finds the January 2010 VA examination to be inadequate and gives it less probative weight. The Board remanded this appeal in May 2014 for further development. The Veteran was scheduled for an April 2016 VA examination for his hearing loss but did not appear for this examination. The Board remanded this appeal in September 2017 for further development. The Veteran was afforded a December 2017 VA examination. No puretone or speech audiometry results were obtained from this examination. The VA examiner noted the Veteran with chronic otitis media and the Veteran stated that he had an ear infection at the examination and was unable to wear the left earphone due to pain in his left ear. The Veteran then declined to continue testing. The Board remanded this appeal in November 2018 for further development. The Veteran was afforded a May 2019 VA examination. Puretone threshold levels in decibels were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 20 25 30 40 29 LEFT 25 20 20 30 24 Maryland CNC testing was 94 percent for the right ear and 94 percent for the left ear. The examiner gave a diagnosis of bilateral sensorineural hearing loss. Review of the Veteran’s medical treatment record shows diagnoses for bilateral sensorineural hearing loss however no pure tone findings or speech recognition scores were reported with these diagnoses. Although the Board remanded to obtain any pure tone or speech recognition scores, review of the record shows no pure tone or speech recognition score were obtained or associated with the record. Reviewing the available examinations on record shows the left ear pure tone testing or speech discrimination scores does not meet the criteria as outlined in 38 C.F.R. § 3.385. Although review of the Veteran’s medical record and examination show diagnoses for sensorineural hearing loss, the competent medical evidence of record does not show the Veteran with at least 3 pure tone thresholds at 26 decibels or greater or show a Maryland CNC score less than 94 percent. As such, the Board finds the preponderance of the evidence is against a finding that the Veteran meets the criteria for a current diagnosis of a left ear hearing loss disability meeting the criteria of 38 C.F.R. § 3.385. Since the Veteran’s left ear hearing loss does not meet the criteria of 38 C.F.R. § 3.385, his claim cannot succeed. In reaching this determination, the Board does not question the sincerity of the Veteran’s reports of difficulty hearing and acknowledges that, as a lay person, he is competent to report that he has difficulty hearing. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board does find the Veteran credible in his assertions regarding in-service noise exposure and current trouble hearing. Indeed, the Veteran is service connected for tinnitus and right ear hearing loss based on acoustic trauma in service. However, as a layperson, the Veteran does not have the requisite expertise to provide a competent opinion as to whether he has a left ear hearing loss disability in accordance with VA standards, as such matters require medical expertise. 38 C.F.R. § 3.159 (a)(1)(competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). Importantly, the Veteran’s left ear hearing was tested several times during the pendency of the claim and at no point did the puretone thresholds or Maryland CNC speech recognition scores in either ear rise to the level of a disability for VA purposes. 38 C.F.R. § 3.385. Absent any current diagnosis of a left ear hearing loss disability in accordance with VA standards, an award of service connection for left ear hearing loss is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim advanced must be denied. 38 U.S.C. § 5107 (b); see also, generally, Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND The Board finds remand is warranted for additional remand before adjudication of the Veteran’s appeal. In a November 2011 private rehabilitation commission report, the Veteran reported a history of chronic and progressive severe back pain resulting from a fall in 1992 to 1993. The Veteran stated that he was able to perform most basic hygienic needs but required assistance to dress, toilet, and showering. The private examiner observed the Veteran was able to sit, stand and move about with a lot of difficulty. The examiner noted the Veteran had severe back pain with minimal movement of the spine from the vertical position at the waist with some paravertebral muscle spasm. Most notably the examiner stated the Veteran “can bend at the most to about 20-degree angle from the vertical position at the waist.” In a September 2017 Board decision, the Board denied entitlement to an evaluation in excess of 20 percent for thoracic spine scoliosis and lumbar spine lordosis. In the decision the Board found the validity of the November 2011 private medical examination findings to be questionable. The Board decision found it unclear whether the extent of motion was measure with a goniometer or estimated by eye. The Board further stated that even if the November 2011 examination results were valid, the Board found that other evidence in the record seemed to suggest these findings were isolated in nature and pointed out the Veteran’s flexion at an April 2016 VA examination was record at 85 degrees without ankylosis. As such, the September 2017 Board decision gave less probative weight to the November 2011 private medical examination findings. In the May 2018 CAVC decision, the Court found the Board failed to provide an adequate statement of reasons and bases in giving the November 2011 private medical examination less probative weight. The Court noted that 38 C.F.R. § 19.9 directs that: “If further evidence, clarification, correction of a procedural defect, or any other action is ‘essential for a proper appellate decision’, the Board is to remand the claim in question to the agency of original jurisdiction for the completion of such efforts.” Furthermore, the Court noted in Savage v. Shinseki, 24 Vet. App. 259, 264 (2011), the Court held that while 38 C.F.R. § 19.9 did not “compel VA to obtain clarification of evidence,” VA’s duty to seek clarification was not limited to VA medical examination reports. As such, the Court held the Board was required to seek clarification only when the development in question is “reasonable and essential to a proper decision.” Id. (citing 38 C.F.R. § 19.9) The Court found the September 2017 Board decision offered an inadequate statement of reasons and bases when it failed to explain whether it was appropriate to seek clarification from the November 2011 private examination under 38 C.F.R. § 19.9. As such, the Court vacated the Board’s decision and remand was appropriate to provide an adequate statement of reasons and bases to discuss the November 2011 private examination. In November 2018, the Board remanded the appeal for additional development to include getting a new VA examination to evaluate the current severity of the Veteran’s thoracic spine scoliosis and lumbar spine lordosis. However, no instructions were provided to request a clarification of the November 2011 private examination findings. The most recent VA examination for the Veteran’s thoracic scoliosis and lumbar lordosis was held in June 2019; however, the VA examiner did not address the November 2011 private examination findings. As it is unclear how the November 2011 examination’s range of motion findings were measured and if the Veteran’s manifestations of his symptoms at the examination were an isolated finding, the Board finds remand is warranted for further clarification and development. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Return the claims file to the VA examiner who conducted the June 2019 examination, if available, for an addendum opinion. If that examiner is not available, the claims file should be provided to another physician to obtain the requested opinion. After review of the claims file, the examiner is asked to respond to the following: (a.) Address the November 2011 private medical examination findings regarding the Veteran’s thoracic scoliosis and lumbar lordosis. In particular, the examiner should comment on the Veteran’s reported 20-degree range of motion as found by the private examiner and address whether it can be determined as to how the measurement was obtain and if it is accurate for rating purposes. (b.) The examiner should also address whether the Veteran’s manifestation of his disability and symptoms at the November 2011 private medical examination were an isolated documentation in relation to the medical evidence of record. (c.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). (d.) If the examiner cannot provide an answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided. (e.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (f.) If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (g.) The examiner should provide a complete rationale for any opinion provided, and if the examiner is unable to provide any opinion request, then the examiner should state so and why. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.