Citation Nr: 20043727 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 17-62 556 DATE: June 29, 2020 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for a service-connected acquired psychiatric disorder, identified as posttraumatic stress disorder (PTSD), also diagnosed as a mood disorder, is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected lumbar degenerative disc disease status post lumbar laminectomy L5 - S1, also claimed as lumbar spondylosis, is remanded. Entitlement to an initial rating in excess of 10 percent for a service-connected right lung nodular lesion, claimed as lung disability, is remanded. Entitlement to an initial compensable rating for service-connected left ear hearing loss is remanded. FINDING OF FACT A right ear hearing loss disability, as defined by VA regulation, has not been shown since the filing of the claim and during the pendency of this appeal. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1997 to March 2001, January 2003 to March 2003, October 2005 to September 2006, and September 2008 to July 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Travel Board Hearing. Notice of the scheduled October 2019 hearing was mailed to the Veteran’s most recent address of record, but he failed to report. In April 2020 the Board send correspondence offering the Veteran another opportunity to appear for a Board hearing. However, he failed to respond to such correspondence. Since no cause has been provided for the Veteran’s failure to appear and he failed to respond to the April 2020 correspondence, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). Additionally, the Board notes that the Veteran listed the issues of entitlement to service connection for thyroid goiter, osteoarthritis, irritable bowel syndrome (IBS) asthma, cervical radiculopathy, anterior cervical disc replacement, asthma, and chronic bronchitis on the April 2014 notice of disagreement and November 2017 substantive appeal. However, the AOJ has not adjudicated these issues and in December 2017, the Veteran was informed that he had not filed a claim for these issues. Without an AOJ adjudication and timely appeal, the Board does not have jurisdiction over these issues. As a final preliminary matter, the Board notes that in the November 2017 substantive appeal, the Veteran requested “a full review of [his] medical records with legal representation.” In December 2017, the Veteran was mailed a correspondence which addressed obtaining representation or a Veterans Service Organization (VSO). However, the Veteran never followed up or appointed representation. Nonetheless, in May 2018 the Veteran’s entire claim was released to his Congressman, as requested in a January 2018 correspondence. Entitlement to service connection for right ear hearing loss. At onset, the Board notes that the Veteran’s April 2014 notice of disagreement (NOD) suggests that this claim was submitted in error. Specifically, the Veteran stated that he disagreed with the “Board’s” findings. He elaborated, stating that his hearing loss is in his left ear and that a claim submitted as “right ear” was an error. Regardless, the Board finds that this statement is not a clear effectuation of an intent to withdraw the claim; thus, a finding must be issued as to entitlement to service connection. See 38 C.F.R. § 20.204. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted for listed chronic diseases if they are shown to have manifested to a compensable degree within one year after the Veteran was separated from service or through a showing of “continuity of symptomatology” since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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 seeks service connection for right ear hearing loss. The Veteran underwent a VA audiological examination in June 2012. The right ear results were follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right Ear 10 dB 15 dB 15 dB 10 dB 25 dB 16.25 dB The speech discrimination score was 100 percent in the right ear. Based on the foregoing, service connection for right ear hearing loss disability is not warranted because the evidence of record is against a finding that the Veteran has a current disability in accordance with VA regulations. Initially, the Board notes that the most fundamental requirement for any claim for service connection is that the Veteran must first establish he or she has the disability claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995). In this case, a current hearing loss disability for VA purposes is not shown in the Veteran’s right ear. As noted above, a hearing loss disability is defined by regulation, i.e., 38 C.F.R. § 3.385. There are no audiometry findings of record for the right ear demonstrating that the Veteran’s auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or that his auditory threshold for at least three of the frequencies is 26 decibels or greater. Therefore, the first element of service connection has not been met. Accordingly, as the record does not demonstrate that the Veteran has right ear hearing loss within VA standards, there is no valid claim for entitlement to service connection for right ear hearing loss. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board recognizes that the Veteran is competent to report his hearing difficulty. However, his statements are not competent to establish right ear hearing loss, which by regulation must be shown by official audiometry. Moreover, the Veteran has indicated that this claim was submitted in error, and that he does not have right ear hearing loss. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for right ear hearing loss, and the benefit-of-the-doubt rule is not for application. REASONS FOR REMAND 1. Entitlement to an initial rating greater than 30 percent for an acquired psychiatric disorder, including PTSD and mood disorder. 2. Entitlement to an initial rating greater than 10 percent for a lumbar spine disability. 3. Entitlement to an initial rating greater than 10 percent for a lung disability (right lung nodular lesion). 4. Entitlement to an initial compensable rating for left ear hearing loss. The Veteran has consistently contended that he is entitled to increased ratings for his service-connected psychiatric, lumbar spine, hearing loss, and lung disabilities. The Board notes the most recent examinations for the Veteran’s psychiatric, lumbar spine, hearing loss, and lung disabilities were in June 2012 in conjunction with a Medical Evaluation Board/Physical Evaluation Board. Generally, the passage of time since the most recent VA examination is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007). However, in this case as the last VA examinations were conducted eight years ago while the Veteran was still in service, and the most recent post service treatment records are from 6 years ago. Thus, in this case, the Board finds that the record is not sufficient to adequately decide the claims. As such, remand for more contemporaneous VA examinations is warranted. Further, regarding the lumbar spine, the June 2012 examiner did not conduct range of motion testing for both active and passive motion, as well as both weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, remand is also warranted to comply with Correia. The matters are REMANDED for the following action: 1. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issues on appeal. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. The Board is particularly interested any outstanding records of VA medical treatment (generated after the last treatment notes of record). The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran’s VA claims folder. 2. After completing the action described in paragraph 1, schedule the Veteran for an examination by an appropriate clinician to determine the current symptoms, level of severity, and functional impact associated with his service-connected psychiatric disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 3. After completing the action described in paragraph 1, schedule the Veteran for an appropriate VA examination to determine the current severity of his degenerative disc disease lumbosacral spine s/p L5 - S1 laminectomy. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner should provide the range of motion of the Veteran’s low back and comment on the degree of functional loss due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The examiner should report the point at which pain is objectively recorded. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when his low back is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. This information must be derived from testing for pain on both active and passive motion. The examination report must confirm that all such testing has been made and reflect the results of the testing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. After completing the action described in paragraph 1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lung disability (right lung nodular lesion). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 5. After completing the action described in paragraph 1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ear hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Quinn, 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.