Citation Nr: 21065391 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-48 425 DATE: October 26, 2021 ORDER Entitlement to service connection for left hip strain, to include as secondary to service-connect right hip condition, is dismissed. Entitlement to service connection for sinus condition is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected conditions, is dismissed. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for right eye glaucoma, to include as secondary to service-connected right eye cataract, is remanded. FINDINGS OF FACT 1. In April 2019, the Board of Veterans Appeals (Board), in pertinent part, remanded the matter of entitlement to service connection for left hip strain, sinus condition, and an acquired psychiatric disorder for further development. 2. In a July 2020 rating decision, the Department of Veterans Affairs (VA) regional office (RO) granted entitlement to service connection for left hip strain, sinus condition, and an acquired psychiatric disorder. 3. The Veteran has not filed a notice of disagreement (NOD) with the July 2020 rating decision, including with respect to the disability ratings and effective dates assigned. 4. The preponderance of the evidence reflects that the Veteran has not had hearing loss disability for VA purposes at any time during the pendency of the claim. CONCLUSIONS OF LAW 1. The claims of entitlement to service connection for left hip strain, sinus condition, and an acquired psychiatric disorder are dismissed in light of the absence of a case or controversy. 38 U.S.C. § 7105; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from October 2002 to May 2016. The issues of entitlement to service connection for left hip strain, sinus condition, an acquired psychiatric disorder, bilateral hearing loss, and right eye glaucoma were remanded by the Board in March 2017 and April 2019 for further development. The most recent remand in April 2019 specifically instructed the RO to schedule VA examinations pertaining to the Veteran's claims. Dismissal 1. Entitlement to service connection for left hip strain, to include as secondary to service-connect right hip condition, is dismissed. 2. Entitlement to service connection for sinus condition is dismissed. 3. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected conditions, is dismissed. In April 2019, the Board remanded the matter of entitlement to service connection left hip strain, sinus condition, and an acquired psychiatric disorder, bilateral hearing loss, and right eye glaucoma. In a July 2020 rating decision, VA granted entitlement to service connection for left hip strain, with a 10 percent rating, effective May 21, 2016; sinus condition, with a 10 percent rating, effective May 21, 2016; and an acquired psychiatric disorder, with a 30 percent rating, effective May 21, 2016, and increased to 50 percent, effective February 20, 2020. These grants constituted a full grant of the benefits sought. The Veteran has not filed a NOD with July 2020 rating decision. As any tribunal must do, the Board must ensure that it has jurisdiction over each case before adjudicating the merits. Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Here, the RO granted the issue of entitlement to service connection for left hip strain, sinus condition, and an acquired psychiatric disorder, and the Veteran has not filed a NOD as to the assigned ratings or effective dates. Where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Because the Veteran has not filed an NOD as to the rating assigned, the Board does not have jurisdiction over the issue, and it must be dismissed for lack of jurisdiction. Service Connection 4. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends he has bilateral hearing loss related to his active service. 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). Service connection may also be granted for any disease diagnosed after discharged, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 decibels. Higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 156 (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, or 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 (2018). A review of the medical evidence of record does not show the Veteran has a current hearing loss disability for VA purposes in either ear. His April 2016 hearing conservation data report showed normal hearing for VA purposes. Audiometric testing results from an August 2016 VA examination shows normal hearing for VA purposes under the provisions of 38 C.F.R. § 3.385. Specifically, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 20 LEFT 20 20 15 20 25 The audiometric testing results did not show an auditory threshold of 40 decibels or higher at any of the above-referenced frequencies or auditory thresholds of 26 decibels or greater for at least three of the above-referenced frequencies in either ear. Additionally, the reported Maryland CNC Test scores of 98 percent for both ears do not meet the VA definition of a hearing loss disability. The Veteran underwent another VA examination in March 2020, which also reflected normal hearing for VA purposes under the provisions of 38 C.F.R. § 3.385. Specifically, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 20 LEFT 15 15 15 20 20 The audiometric testing results did not show an auditory threshold of 40 decibels or higher at any of the above-referenced frequencies, or auditory thresholds of 26 decibels or greater for at least three of the above-referenced frequencies in either ear. Additionally, the reported Maryland CNC Test scores of 98 percent for both ears do not meet the VA definition of a hearing loss disability. As evidence during the claim period reflects that the Veteran has not met the criteria for a hearing loss disability, the current disability requirement has not been met. Moreover, neither the Veteran nor his representative has asserted that either of the VA examination was inadequate. The Board acknowledges the Veteran' report of pain to both ears and having muffled hearing in February 2017 and February 2018 treatment notes. However, although the Veteran is competent to say that he has decreased hearing in both ears, hearing loss for VA compensation purposes must be established by audiometric and/or speech recognition scores. The Board in no way calls into question the Veteran's own observation of diminished hearing acuity, but the Board is unable to find at this time that the Veteran's bilateral hearing loss is of such severity to qualify as a disability for VA purposes, as defined by regulation. The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service. However, the Board finds that the claim of entitlement to service connection for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 5. Entitlement to service connection for right eye glaucoma, to include as secondary to service-connected right eye cataract, is remanded. Upon review of the record, the Board finds that the claim must be remanded for a new VA examination and etiological opinion. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. The Veteran appeared for a VA examination in February 2020, in which the examiner noted diagnoses of mild open angle glaucoma, other secondary cataract, and mild nuclear sclerosis from 2016. She opined that the Veteran's glaucoma was less likely than not related to his service because the Veteran was not diagnosed with glaucoma until 2016 and there was no prior note of glaucoma or history of trauma or injury in his medical records. Additionally, she opined that the Veteran's glaucoma was less likely than not caused by his service-connected right eye cataract. However, the February 2020 examiner failed to provide an opinion regarding the aggravation aspect of secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (opinions regarding secondary service connection must address both causation and aggravation). Accordingly, a remand is necessary to afford the Veteran a new examination to ascertain the nature and etiology of his right eye glaucoma. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's right eye glaucoma. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and conducting an examination of the Veteran, the examiner should respond to the following: (a.) State whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's right eye glaucoma had its onset in or is related to service, to include exposure to hazardous chemicals like oil, hydraulic fluid, and jet fuels, as well as things hitting the side of the Veteran's face. See September 2017 Form 9. (b.) State whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's right eye glaucoma was caused or aggravated by the Veteran's service-connected right eye cataract. An opinion as to both causation and aggravation is requested. (c.) If the examiner finds that the Veteran's right eye glaucoma was aggravated by his service-connected right eye cataract, then he/she should specify the baseline level of disability of the right eye glaucoma prior to aggravation due to the service-connected right eye cataract. Note that aggravation means any incremental increase in disability in the non-service-connected condition (i.e., any additional impairment of earning capacity) resulting from the service-connected condition. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.