Citation Nr: 21062308 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-60 282 DATE: October 6, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected hallux valgus of the left foot with arthritis of the great toe is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected hallux valgus of the right foot with arthritis of the great toe is remanded FINDING OF FACT The Veteran does not currently have a hearing loss disability in either ear sufficient for VA compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1984 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for hallux valgus of the right and left feet; a noncompensable (zero percent) rating was assigned for hallux valgus of the right foot and a 10 percent rating was assigned for hallux valgus of the left foot. The rating decision also denied service connection for bilateral hearing loss and tinnitus. The Veteran submitted a notice of disagreement (NOD) in February 2014 and a statement of the case (SOC) was issued in October 2017. He perfected a timely appeal in November 2017. In January 2020, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In a May 2020 Board decision, the claims were remanded for further evidentiary development. In a November 2020 rating decision, the RO increased the assigned initial rating for right foot hallux valgus with arthritis of the great toe to 10 percent, effective from March 21, 2012. The RO also granted service connection for great toe arthritis and combined the rating with hallux valgus of the left foot continuing the assigned 10 percent rating. The Veteran has not expressed satisfaction with the increased initial disability rating for right foot hallux valgus; this matter thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). A supplemental statement of the case (SSOC) was issued in November 2020. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. As will be detailed below, a review of the record reflects substantial compliance with the Board's Remand directives as to the bilateral hearing loss claim only. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection on a direct basis, the record must contain competent 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 or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain enumerated diseases will be service connected on a presumptive basis if they manifested to a compensable degree within one year after active duty service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A nexus between the current disability and service may be established by evidence of continuity of symptomatology since service for a listed chronic disability. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). VA deems sensorineural hearing loss to be an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). See Veterans Benefits Administration (VBA) Fast Letter 10-02 (Mar. 18, 2010); Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. 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. Service connection will be granted for a hearing loss disability where the evidence establishes a nexus between the current hearing loss and a disease or injury suffered while in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, 5 Vet. App. at 159. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. Here, the Veteran contends that he developed bilateral hearing loss as a result of his military service. For the reasons set forth below, the Board concludes that service connection is not warranted. The first critical element in this matter is whether at any time during the current appeal the Veteran has been diagnosed with a hearing loss disability as defined under VA regulation 38 C.F.R. § 3.385. See 38 U.S.C. §§ 1110, 1131. For the reasons set forth below, the Board must answer this question negatively. As noted above, the Veteran served on active duty from January 1984 to January 1987. His service treatment records (STRs) include his October 1986 service separation examination, which showed the following audiometric thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 10 0 0 5 0 LEFT 0 0 0 0 10 The Veteran was afforded a VA examination in July 2013 at which time the examiner noted the Veteran's report of exposure hazardous noise in his military occupational specialty (MOS) of cannon crewman. The examiner documented the following audiometric thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 15 10 10 5 10 LEFT 5 5 5 10 6 The July 2013 VA examiner also noted that the speech recognition score was 94 percent in the right ear and 96 percent in the left ear. At the January 2020 Board hearing, the Veteran presented personal testimony that his hearing loss symptomatology had worsened. See, e.g., the Board hearing transcript dated January 2020. In order to afford the Veteran the benefit of the doubt, the Board remanded the hearing loss claim in May 2020 to obtain an updated VA audiology examination. Pursuant to the May 2020 Board Remand, the Veteran was afforded a VA audiology examination in October 2020 at which time the examiner documented the following puretone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 30 25 23 LEFT 15 20 25 30 23 The October 2020 VA examiner further documented speech recognition scores of 96 percent in both of the Veteran's ears. Accordingly, the Veteran's hearing thresholds as documented by the October 1986 service audiogram as well as the July 2013 and October 2020 VA audiology examiners are below those recognized by VA as denoting hearing impairment. See 38 C.F.R. § 3.385. Consistently, the Veteran's speech recognition scores are above those recognized by VA as denoting hearing loss pursuant to 38 C.F.R. § 3.385. Significantly, the evidence of record including in-service and post-service audiometric testing shows that the Veteran does not meet the criteria for a current hearing loss disability in either ear for VA purposes. 38 C.F.R. § 3.385 dictates that service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Veteran's speech recognition scores using the Maryland CNC Test were 96 percent in the right ear and 94 percent in the left ear, at the lowest; as such, neither score was below 94 percent. Moreover, no frequency had an auditory threshold of greater than 25 decibels; and the auditory threshold for at least three frequencies was not 26 decibels or greater. There is no other post-service clinical evidence establishing a current hearing loss disability for VA purposes. Accordingly, the Veteran does not meet the criteria under 38 C.F.R. § 3.385 to have hearing loss for VA compensation purposes at this time. Although the Veteran is competent to describe symptoms of difficulty hearing, he is not competent to state that his hearing acuity is severe enough to meet the specific criteria set forth in section 3.385. This requires specific measurements as recorded on an audiometric test. Under these circumstances, entitlement to service connection for bilateral hearing loss must be denied because the most probative evidence shows that the Veteran does not currently have a bilateral hearing loss disability for VA purposes. Congress specifically limits entitlement for service-connected disease or injury to cases where in-service incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.§ 1110 to require evidence of a present disability to be consistent with congressional intent). In other words, the law limits entitlement to compensation to cases where the underlying in-service incident has resulted in a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). VA has promulgated regulations specifically defining a hearing loss disability. See 38 C.F.R. § 3.385. Although the Veteran has contended that he has bilateral hearing loss, the record contains audiometric test results which establish that any decreased hearing acuity he perceives does not meet the criteria set forth in section 3.385, a necessary prerequisite to an award of service connection for bilateral hearing loss. The Veteran is competent to describe decreased hearing acuity; however, he is not competent to state that his hearing acuity meets the required puretone thresholds, in decibels. Again, absent probative evidence of a current hearing loss disability, the claim must be denied. As the preponderance of the evidence is against the claim of service connection for bilateral hearing loss, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected hallux valgus of the left foot with arthritis of the great toe is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected hallux valgus of the right foot with arthritis of the great toe is remanded The claims of entitlement to higher initial disability ratings for service-connected hallux valgus of the left and right feet were remanded by the Board in May 2020 in order to obtain an updated VA examination to assess the severity of the Veteran's service-connected disability as well as to obtain a medical opinion to address the Veteran's contention that he has hammer toes that should be considered as part of his service-connected hallux valgus of the left and right feet. The examiner was specifically directed to address whether it is as likely as not that any additional disability documented upon examination has its clinical onset in service or is otherwise related to a disease or injury in service. The examiner was additionally instructed to opined as to whether it is at least as likely as not that said disability is (1) proximately due to a service-connected disability to include hallux valgus of the right and left feet, or is (2) aggravated beyond its natural progression by a service-connected disability to include hallux valgus of the right and left feet. Pursuant to the Board Remand, the Veteran was afforded a VA examination in September 2020 at which time the examiner discussed the severity of the service-connected hallux valgus of the right and left feet with arthritis of the great toes. The September 2020 VA examiner documented a diagnosis of hammer toes of the second, third, fourth, and fifth toes of the bilateral feet, in addition to the service-connected hallux valgus. In a separate November 2020 medical opinion, the VA examiner explained, "[a]fter a review of current medical literature there is no objective documentation to support a cause and effect relationship between hallux valgus deformities and hammertoes. Therefore, it would be less likely than not that this veteran's BL hammertoes as noted above are secondary to his service connected BL hallux valgus foot condition." The examiner failed to provide any additional rationale for his conclusion and also failed to address the question of whether it is at least as likely as not that the diagnosed hammer toes is (1) proximately due to a service-connected disability to include hallux valgus of the right and left feet, or is (2) aggravated beyond its natural progression by a service-connected disability to include hallux valgus of the right and left feet. Additionally, in the September 2021 Written Brief Presentation, the Veteran's representative asserted that the September 2020 examination report demonstrates bias because the examiner disregarded the Veteran's report of pain in both feet that increases with prolonged standing or walking, when addressing the question of functional loss. The Board further notes that the September 2020 VA examiner specifically indicated that the Veteran has no history of foot surgery and therefore did not identify any residuals, despite the fact that the Veteran's history of metatarsal osteotomy/metatarsal head osteotomy in 1986 is well-documented in the record to include in the July 2013 VA examination report. Given the assertions of the Veteran's representative as well as the identified inadequacies of the September 2020 VA examination and November 2020 VA medical opinion, the Board finds that the evidence currently of record is inadequate to resolve the increased initial ratings claims. Therefore, these claims must be remanded in order to obtain a new VA examination and medical opinion as to the pending claims. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. The matters are REMANDED for the following action: 1. After obtaining any additional information and authorization necessary, undertake appropriate efforts to procure any records of outstanding private and VA treatment. All such available documents should be associated with the claims file. 2. After all available records have been associated with the claims file, arrange for the Veteran to undergo VA examination to evaluate the service-connected hallux valgus of the right and left feet. The claims file must be made available to the examiner for review in connection with the examination. The examination should be conducted in accordance with the current disability benefits questionnaire. The examiner should document all disabilities of the right and left feet. For any diagnosed disability of the right and left feet (other than the service-connected hallux valgus) to include hammer toes of the bilateral feet, the examiner should render an opinion as to: a. Whether the identified disability is part and parcel of the service-connected hallux valgus. b. Whether it is at least as likely as not (i.e., at least a 50 percent probability) that the diagnosed disability of the right and/or left foot other than hallux valgus had its(their) clinical onset in service, or is(are) otherwise related to a disease or injury incurred in service. c. Whether it is at least as likely as not that said disability is (1) proximately due to a service-connected disability to include hallux valgus of the right and left feet, or is (2) aggravated beyond its natural progression by a service-connected disability to include hallux valgus of the right and left feet. The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.