Citation Nr: 21003932 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-20 928 DATE: January 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to an initial disability rating higher than 20 percent for the service-connected acromioclavicular joint arthritis and biceps tendinopathy of the left shoulder is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran had a bilateral hearing loss disability, as defined in VA regulations, 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, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2007 to September 2011. This appeal before the Board of Veterans’ Appeals (Board) arose from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the current appeal, and specifically in March 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In September 2019, the Board remanded the claims discussed herein for further evidentiary development. Service Connection for Bilateral Hearing Loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury, event, or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. See id., see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that he developed bilateral hearing loss due to in-service noise exposure, specifically as a result of acoustic trauma sustained while performing his duties as a boatswain’s mate and as a gunner’s mate in service. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 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 (1993). In the July 2013 VA audiological examination report, audiological testing revealed the Veteran’s puretone thresholds for the right ear, at 500, 1000, 2000, 3000, and 4000 Hz, to be as follows, in decibels: 10, 10, 5, 15, and 15, respectively. Puretone thresholds for the Veteran’s left ear at 500, 1000, 2000, 3000, and 4000 Hz, in decibels, were 10, 10, 10, 15, and 5, respectively. Using the Maryland CNC Test, word recognition testing revealed a 96 percent score for the right ear, and a 100 percent score for the left ear. The examiner noted that the Veteran had normal hearing in his left ear and sensorineural hearing loss (at the 6000 Hz frequency range or higher) in his right ear. Importantly, however, the report noted that, although the Veteran’s right ear exhibited impaired hearing, it did not meet the criteria to be considered a disability for VA purposes. Cf. 38 C.F.R. § 3.385. A March 2016 VA audiologist noted that audiometric testing results were considered invalid and unreliable due to the Veteran’s poor interest reliability. The audiologist, thus, did not report the audiometric testing results. Also, at a May 2013 VA primary care consultation, the Veteran denied having any acute hearing problems. He also denied any change in his hearing acuity at a December 2013 VA primary care consultation. The Veteran’s hearing acuity was assessed again during a July 2020 VA-contracted examination. Audiological testing revealed the puretone thresholds for his right ear, at 500, 1000, 2000, 3000, and 4000 Hz, to be as follows, in decibels: 15, 20, 15, 15, and 35, respectively. Puretone thresholds for the Veteran’s left ear at 500, 1000, 2000, 3000, and 4000 Hz, in decibels, were 15, 10, 20, 15, and 20, respectively. Word recognition testing with the Maryland CNC Test revealed a 94 percent score for both ears. The examiner noted that the Veteran had normal hearing in his left ear. While the examiner noted that the Veteran had sensorineural hearing loss at 500 to 4000 Hz frequency range, and at the 6000 Hz frequency range or higher, in his right ear, his right ear hearing impairment again did not meet the criteria to be considered a disability for VA purposes. Cf. 38 C.F.R. § 3.385. In spite of the Veteran’s contentions regarding having sustained in-service acoustic trauma, the Board concludes that the Veteran does not have a current bilateral hearing loss disability. He further has not had such disability at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. § 501; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.385. In making this decision, the Board assigns significant weight to the July 2013 and July 2020 examination findings. These reports reflect that the Veteran’s auditory thresholds did not exceed 40 decibels at any frequency, and did not reach 26 decibels for at least three frequencies. Further, speech recognition scores were not less than 94 percent during either examination. 38 C.F.R. § 3.385. There is simply no probative evidence of record indicating that the Veteran has exhibited hearing loss for VA disability purposes in either ear. Thus, the evidence is against finding that the Veteran meets the criteria for a current bilateral hearing loss disability. To the extent that the Veteran has asserted having hearing loss, the objective clinical testing outweighs his lay assertions. Audiometric testing is required to determine whether there is hearing loss for VA purposes, and the testing results simply have not established such hearing loss in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed Cir 2007). The Board is sympathetic to the Veteran’s contentions, and does not doubt his credibility, as he can attest to factual matters of which he has first-hand knowledge. Nonetheless, the VA examination results constitute the only objective, probative evidence the Board can rely on for determining whether hearing loss reaches a sufficient level to be considered a VA disability. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Based on the foregoing, the Board finds that the evidence fails to show that the Veteran manifested any hearing loss for VA disability purposes any time during the pendency of the claim or recent to the filing of the claim. Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Higher Disability Rating for Left Shoulder Disability The Board remanded the Veteran’s higher disability rating claim for his service-connected left shoulder disability in September 2019 to afford him a contemporaneous VA examination to obtain specific information pertaining his ranges of motion in passive motion and in non-weight bearing, pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also noted that information was required with respect to the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from reported flare-ups of left shoulder disability from the Veteran himself, pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). The Veteran was afforded a new VA examination of his left shoulder disability in July 2020. While the examiner reported active and passive range of motion testing findings and noted that the Veteran had evidence of pain when he used his left shoulder, the examiner did not provide the results of range of motion testing in non-weight bearing. Also, the examiner did not report any information obtained from the Veteran as to the severity, frequency, duration, and characteristics of his left shoulder disability during reported flare-ups. A remand by the Board confers on a claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Board finds that the July 2020 VA examination is inadequate where the necessary Correia and Sharp findings were not obtained as part of that evaluation. Thus, further remand is necessary to afford the Veteran a new VA examination to addresses the current severity of his left shoulder disability adequately in accordance with Correia and Sharp. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current severity of the service-connected acromioclavicular joint arthritis and biceps tendinopathy of his left shoulder. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating this disability under the pertinent rating criteria. The examiner should test the range of motion and pain in the Veteran’s left shoulder in active and passive motion, and in weight-bearing and non-weight bearing (with results expressed in degrees). The same range of motion testing should also be accomplished for the Veteran’s right shoulder (for comparison purposes). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner must attempt to elicit information regarding the severity, frequency, duration, and characteristics of left shoulder flare-ups, and the degree of functional loss during flare-ups. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use over time, due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion, must also be noted. The examiner must offer an opinion as to whether there would be additional limits on functional ability during reported flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation in range of motion beyond that shown clinically. Should the examiner state that he or she is unable to offer any such opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up or following repetitive use over time, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information regarding the severity, frequency, duration, characteristics, and functional loss of the Veteran’s flare-ups or with repetitive use over time by alternative means. A clear explanation for all opinions expressed would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide a requested opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.