Citation Nr: 21065533 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-10 531 DATE: October 26, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for thoracolumbar degenerative disc disease (spine) disability is remanded. Entitlement to an initial compensable rating for migraine disability is remanded. Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's left ear loss disability is attributable to noise exposure during his combat service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(b), 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 in the United States Army from February 2005 to April 2013. In December 2015, the Veteran testified before a Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims folder. In an August 2021 letter, the Board notified the Veteran that the VLJ who conducted his hearing had retired. This letter offered the Veteran the option of electing a new hearing before a different VLJ and indicated that, if no response was received within 30 days, the Board would proceed without a hearing. See 38 C.F.R. § 20.707. There has been no response and the Board may proceed to adjudicate the claims. 1. Entitlement to service connection for left ear hearing loss The Veteran contends that his current hearing loss had its onset in service as a result of excessive noise exposure. Specifically, the Veteran claims that his hearing loss is due to acoustic trauma related to his participation in combat while serving in Southwest Asia and Afghanistan during the Persian Gulf War. The Veteran reports onset of hearing problems, primarily in his left ear, during his first combat deployment in Iraq after a long battle involving mortar fire and gunfire and he was not wearing hearing protection. See C&P Exam (October 2013) and Correspondence (December 2015). He reports that his hearing loss has gradually worsened since service, and he has submitted lay evidence from K.Q., who attests that she has observed the Veteran's decrease hearing acuity since 2013. See Buddy/ Lay Statement (December 2015). A May 2017 VA audiology examination report shows the Veteran has a speech discrimination score of 94 percent in the left ear, which demonstrates hearing loss disability in that ear for VA purposes. See 38 C.F.R. § 3.385. The Board concludes that the evidence of record supports the claim of entitlement to service connection for left ear hearing loss disability. 38 U.S.C. § 1154(b). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a), (d). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Under VA's "combat presumption," in cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If a Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304 (d). In the case of a combat veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Shedden, 381 F.3d at 1167. The Board notes that the Veteran's military personnel records reflect that he engaged in combat against the enemy during the Persian Gulf War. His military occupational specialty (MOS) was indirect fire infantry, and he was awarded the Combat Infantry Badge. See Certificate of Release or Discharge from Active Duty (DD-214). Therefore, in this case, the Veteran's lay statements provide sufficient evidence that an injury or disease was incurred in combat as his statements are consistent with the circumstances, conditions, and hardships of his service. In addition, the Veteran's service treatment records (STRs) document left ear hearing problems following his initial deployment in Iraq. A May 2008 STR show the Veteran complained of left ear hearing problems since his deployment. Although the pure tone threshold results from the May 2008 audiogram suggested mild to moderate left ear sensorineural hearing loss (SNHL), the results of 30 db at 500 and of 40 db at 4,000 Hertz were considered inconsistent. The Veteran's service audiometry results from his February 2005 enlistment examination compared to his April 2010 periodic examination also show a shift in his pure tone thresholds, albeit not a hearing loss disability for VA purposes. See STR-Medical (January 2013). In May 2010, the Veteran again presented with left ear hearing problems. A June 2010 STR shows that while the Veteran continued to complain of hearing troubles following his second deployment, but it was noted that the pure tone thresholds test results revealed improvement hearing acuity in comparison to the May 2008 audiometric results. He continued again complained of hearing trouble following his third and final deployment. See STR-Medical (March 2017). However, the audiometric results in an October 2013 VA audiology examination report failed to demonstrate hearing loss disability in either ear for VA purposes. See STR-Medical (January 2013). Although the May 2017 VA examination reports includes a negative medical opinion, the Board finds this opinion to have no probative value because it relied on the lack of objective findings demonstrating permanent auditory damage, as reflected by hearing acuity within normal limits at separation, without any explanation as to why this is dispositive. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Also, the opinion ignored or dismissed the Veteran's competent, credible lay reports as to the in-service onset and continuity of his hearing loss symptoms. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). While the Board could remand the claim for another medical opinion, considering the weight of the competent and credible evidence of record supporting a grant of service connection, such a request under these circumstances could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). In sum, the medical evidence reflects that the Veteran has current left ear hearing loss disability for VA compensation purposes. Moreover, the lay evidence of record is both competent and credible with respect to the onset of hearing problems starting in service and continuing thereafter, and consistent with the circumstances, conditions, and hardships of his combat service. Although the record includes a negative VA medical opinion, the Board finds that the opinion lacks probative value insofar as it is not supported by complete or adequate rationale. Accordingly, resolving reasonable doubt in the Veteran's favor, the claim for entitlement to service connection for left ear hearing loss is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. 1. Entitlement to an initial rating in excess of 10 percent for thoracolumbar degenerative disc disease (spine) disability is remanded. 2. Entitlement to an initial compensable rating for migraine disability is remanded. 3. Entitlement to service connection for right ear hearing loss is remanded. Remanded Issues 1-3: A remand is needed to obtain identified outstanding treatment records. VA has a duty to attempt to obtain relevant records not in Federal custody and to ensure VA treatment records are complete regardless of relevancy, which should then be associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1), (2); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). A review of the Veteran's VA treatment records discloses that medical records relevant to the appeal were associated with VA medical records system using Vista-Imaging. In particular, these medical records indicate numerous non-VA neurologic consultation reports as well as orthopedic, physical therapy, and ear, nose, and throat (ENT) consultation reports. See CAPRI (June 2020). However, copies of these records are not included in the claims file or otherwise associated with the available VA treatment records. Therefore, remand is necessary to associate copies of these scanned record with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from May 2020 to the Present. 2. Associate copies of all treatment records that have been made available via the VISTA Imaging system with the Veteran's claims folder. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Murray, 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.