Citation Nr: 20021560 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-45 877 DATE: March 26, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for degenerative disc disease lumbar spine (lumbar spine disability) is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has bilateral hearing loss at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to August 1986 and from January 1991 to May 1991, with additional inactive service in the United States Marine Corps Reserves. While the appeal was pending, a July 2016 rating decision granted service connection for tinnitus and posttraumatic stress disorder (PTSD). A grant of service connection constitutes a full grant of benefits on appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Accordingly, the claims for entitlement to service connection for tinnitus and PTSD are no longer before the Board of Veterans’ Appeals (Board). In July 2019, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. 1. Bilateral hearing loss The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability. See August 2014 Notice of Disagreement. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).   Relevant Facts and Analysis The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran was provided a VA examination in May 2016 in connection with his claim. See May 2016 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The audiological evaluation revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 25 25 LEFT 15 20 20 30 30 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss in the frequency range 500-4000 Hertz and in the frequency range of 6000 Hertz or higher. Id. Although the examiner provided a positive nexus opinion, the examiner stated that “Per VA standards, the hearing loss noted on today’s hearing [examination] does not meet the criteria of a ratable hearing disability.” Id. After a careful review of the record, the Board finds that the Veteran’s bilateral hearing loss does not meet the requirements for establishing hearing loss as a disability for VA purposes. Specifically, the Veteran does not demonstrate a current hearing loss disability as defined by VA regulations. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz were not 40 decibels or greater; and the Veteran did not have auditory thresholds of at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz equal of greater than 26 decibels. Furthermore, the Veteran’s speech recognition scores were 100 percent bilaterally. Accordingly, the Board finds that the first element of service connection has not been met. Without evidence of a current hearing disability, the Board need not address the other elements of service connection. See 38 U.S.C. § 1110 (2012); Degmetich v. Brown, 104 F. 3d 1328 (1997) (the existence of a current disability is the cornerstone of a claim for VA disability compensation); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of evidence of a present disability, there can be no valid claim); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (stating “[w]ithout a current disability, of course, there can be no service connection and, thus, no disability compensation.”) Therefore, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Thus, the Veteran’s service connection claim for bilateral hearing loss must be denied. REASONS FOR REMAND 1. Lumbar spine disability Based on a review of the evidence of record, the Board finds that a remand is necessary to obtain a VA examination for the Veteran’s lumbar spine disability. In this regard, the Board notes that the Veteran was not provided a VA examination because the Regional Office (RO) found no evidence of an in-service injury or event due to missing service treatment records (STRs). As an initial matter, the Board notes that the requirements for a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006) are met. A VA examination is warranted where (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to decide the claim. Here, the Veteran’s VA treatment records confirm he was assessed with chronic low back pain status post L4-L5 laminectomy with bilateral pedicle screw and interbody placement and mild degenerative changes in the lumbar spine. See March 2015 VA Physical Therapy Consult in CAPRI received April 2019. The Veteran testified during the July 2019 Board hearing regarding his in-service injury. Specifically, the Veteran reported that he injured his back during reserve training at Camp Pendleton when he was riding a Humvee which hit a bump and caused him to fall and landed on web gear including magazines and rifles. He noted that he was treated for bruised ribs and complained of back pain. The Veteran also testified that he injured his back when he was deployed during the Gulf War. He reported specifically that during his deployment to Saudi Arabia he was near a mortar attack which caused him to be blown away several yards and land on his back on a radio. The Board notes that VA was unable to obtain the Veteran’s STRs to verify the Veteran’s reported injuries after multiple attempts. See July 2018 VA Memorandum. However, the VA has conceded the Veteran’s service in during Persian Gulf War – Operation Desert Storm. Notably, the Veteran was granted service connection for PTSD for stressors during this period including his report of being blown away by mortar attack. In this regard, the Board notes that the based on the Veteran’s service during the Gulf War that a combat presumption applies to injuries the occurred as a result of being engaged in combat while in-service. See 38 U.S.C. § 1154(b); Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The combat presumption holds that, in the case of a combat veteran, an injury or disease alleged to have been incurred in or aggravated by combat, for which there is no official record, may be shown by satisfactory lay evidence if it is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304. The term “engaged in combat,” requires that the Veteran had personally participated in the events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). Here, the Veteran reported that the mortar attack occurred when a group of Saudi Arabian tanks approached the Veteran and six other Marines indicating they wished to surrender, but opened fire on the Marines instead, followed by a mortar attack. The Board finds that the details of the Veteran’s deployment to the Persian Gulf were such that it would be expected that he faced combat conditions. As the Veteran’s injury from mortar attack occurred during combat service, is consistent with the circumstances of service, the Board finds that an in-service injury occurred. Finally, as noted above, the Veteran has not been provided a VA examination to determine the etiology of his lumbar spine disability. As such, the record contains insufficient medical evidence to decide the claim. Accordingly, the Board finds that the requirements for a VA examination pursuant to Mclendon have been met. Thus, on remand, the Veteran should be provided a VA examination to determine the nature and etiology of his lumbar spine disability. 2. TBI For the same reasons as discussed above, the Board finds that a remand is necessary to provide the Veteran a VA examination to determine the nature and etiology for service connection claim for TBI. In this regard, the Board notes that the Veteran’s VA treatment record confirms a diagnosis of TBI. Specifically, in January 2014, the VA physician noted that the Veteran’s “MRI [was] consistent with left frontal TBI.” See January 2014 VA Mental Health Clinic Note in CAPRI received April 2019. As discussed above, the Veteran is entitled to the combat presumption based on his service during the Gulf War. Specifically, the Veteran attributes his TBI to the injury he sustained when he was blown away by a mortar attack. As such, the first two elements of Mclendon have been met. The Veteran was not provided a VA examination for his TBI claim. Thus, the record contains insufficient medical evidence for the Board to render a decision in this claim. As such, the Veteran should be provided a VA examination to determine the nature and etiology of his diagnosed TBI. The matters are REMANDED for the following action: 1. The Regional Office (RO) should obtain any outstanding VA treatment records pertaining to the Veteran’s lumbar spine and TBI disabilities since April 2019 and associate them with the record. 2. After completing the foregoing development, provide the entire claims file (including this Remand decision) to a VA examiner and for a VA examination to obtain etiology and nexus opinions for the lumbar spine disability claim. Any clinically indicated testing and/or consultations should be performed. The examiner is asked to address the following: (a.) Identify any currently present lumbar spine disability(s). (b.) For any lumbar spine disability identified, is the disability at least as likely as not (50 percent probability or greater) due to, or caused by any incident in the Veteran’s active service, to include the Veteran’s reports of falling off a Humvee on top of web gear including magazines and rifles, and/or during the Persian Gulf War when he was blown away by a mortar attack (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current lumbar disability had its onset or manifested within one year of the Veteran’s discharge in May 1991? In forming his or her opinion, the VA examiner is asked to explicitly consider in the rationale portion of the opinion, the Veteran’s lay statements and all other relevant evidence regarding each disability, and comment specifically on whether the Veteran’s statements and all other relevant evidence make sense from a medical point of view. This includes the Veteran’s account of experiencing chronic pain ever since he fell after being blown away by a mortar attack and was injuring his back, as well as complaints of back pain after falling from Humvee vehicle. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. Schedule the Veteran for a neurological examination to determine the nature and etiology of his current symptoms, to include any TBI residuals. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and the entire claims file should be reviewed. The examiner should address the following: (a.) Whether the Veteran has a TBI or TBI residuals. In providing a diagnosis, please provide residual symptoms the Veteran experienced including but not limited to dizziness, vertigo, or impaired cognitive function or memory. (b.) If so, whether it is at least as likely as not (50 percent probability or greater) that the claimed TBI had its clinical onset in service or is otherwise related to an event or incident of that service. Specifically discuss the Veteran’s reports of exposure to a concussive blast from a mortar attack while serving during in Operation Desert Storm in Gulf War (acknowledged by VA in a July 2016 rating decision granting service connection for PTSD). (c.) A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gunella Lilly, 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.