Citation Nr: 21063525 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-25 503 DATE: October 14, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Service connection for a left wrist injury is remanded. Entitlement to a disability rating in excess of 10 percent for left hamstring strain is remanded. Entitlement to a disability rating in excess of 10 percent for right hamstring strain is remanded. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385, 4.85. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2003 to February 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a hearing before a Veterans Law Judge in his June 2016 VA Form 9, but did not appear at the hearing scheduled in November 2019. The Veteran has not offered any reason for the lack of appearance and has not requested that the hearing be rescheduled. Accordingly, the Board will consider the request for a hearing withdrawn. Service connection for bilateral hearing loss Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). After reviewing the evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted because the Veteran currently does not have hearing loss to an extent recognized as a disability for VA purposes. In this regard, 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 (the relevant frequencies) is 40 decibels or greater; the thresholds for at least three of the relevant frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC word list are less than 94 percent. 38 C.F.R. § 3.385. The Veteran underwent a VA audiological examination in May 2014. Audiometric testing showed pure tone thresholds of 0, 0, 5, 5, and 5 decibels at the relevant frequencies in the right ear and pure tone thresholds of 0, 0, 5, 5, and 10 decibels at the relevant frequencies in the left ear. The Veteran's speech recognition scores using the Maryland CNC word list were 96 percent in the right ear and 100 percent in the left ear. The VA examiner noted that the pure tone threshold results were better than those noted in a 2011 audiogram, indicating that the testing reflected temporary shifts in 2011. The Veteran's service treatment records (STRs) include the results of audiometric testing conducted in March 2011. Those results include pure tone thresholds of 15, 10, 15, 20 and 10 decibels at the relevant frequencies in the right ear and pure tone thresholds of 25, 15, 5, 5 and 15 decibels at the relevant frequencies in the left ear. The Board finds the VA examination entitled to probative weight. Based on the results of the examination, service connection is not warranted based on the lack of a current hearing loss disability for VA purposes. The results of the March 2011 in-service audiogram likewise do not reflect hearing loss for VA disability purposes. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a current bilateral hearing loss disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Veteran's claim of entitlement to service connection for bilateral hearing loss must be denied. REASONS FOR REMAND Service connection for a left wrist injury is remanded. The Veteran underwent a VA examination for his wrists in July 2014. The VA examiner concluded that the Veteran did not have a left wrist disability because the pain he experienced in the wrist had resolved. The Veteran contends, however, that he injured his left wrist in service and experiences frequent and painful flareups. Accordingly, the Board finds that a new VA examination is warranted to determine the current nature and etiology of the Veteran's left wrist condition. Entitlement to compensable disability ratings for bilateral hamstring strains is remanded. The Veteran was afforded a VA examination to assess the severity of his bilateral hamstring strains in August 2017. The examiner concluded that it was not feasible to provide an opinion as to additional loss of range of motion during a flare up because the Veteran was not experiencing one during the examination. The Board finds this examination inadequate and remands the claims to address flare-ups and functional loss due to flareups. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate.) The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Following completion of the development in item 1, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's left wrist condition. A copy of the claims file (including this remand) should be made available to and be reviewed by the examiner. All necessary tests should be conducted. If a left wrist diagnosis cannot be provided but the Veteran's condition manifests in signs or symptoms that cause functional impairment, then the examiner should consider them a disability for the purpose of providing the requested opinion. The examiner is asked to provide an opinion as to whether it is at least as likely as not that any currently diagnosed left wrist condition was incurred in service or is otherwise related to service. A complete rationale for the examiner's opinions should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide opinions without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 3. Schedule the Veteran for a VA examination to assess the current nature and severity of the Veteran's bilateral hamstring strains. A copy of the claims file (including this remand) should be made available to and be reviewed by the examiner. The examiner must discuss the severity, frequency, precipitating and alleviating factors and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide an opinion regarding flare-ups, symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.