Citation Nr: 21076625 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-15 955 DATE: December 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for migraines, including migraine variants, is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to a disability rating in excess of 10 percent for lumbar intervertebral disc syndrome and arthritis is remanded. FINDING OF FACT The Veteran's hearing impairment is not considered a disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 2000 to June 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript is on record. In December 2019, the Board remanded the claims for VA examinations, which were provided in January 2020. 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran seeks service connection for bilateral hearing loss. The Board finds service connection is not warranted. When last before the Board, the claim was remanded for a VA examination to determine if the Veteran has a hearing loss disability for VA purposes etiologically related to his service. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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 during service, the so-called "nexus" requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). There are specific requirements regarding what constitutes a hearing loss disability under VA law. Generally, the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold at 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 utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Thus, even if some degree of hearing loss is shown at various frequencies (i.e., a pure tone threshold above 20 at any frequency between 500 Hz and 4000 Hz) such findings do not necessarily reflect a defect with regard to hearing. See McKinney v. McDonald, 28 Vet. App. 15, 29 (holding that hearing loss that does not meet the requirements of § 3.385 is not a "defect" because it is not considered a disability for VA purposes). A review of the Veteran's medical records, service treatment records, including in-service audiograms and the Veteran's separation examination, show the Veteran has not exhibited hearing loss to such a degree as to qualify for a disability under 38 C.F.R. § 3.385. A prior July 2015 VA examination revealed the Veteran did not exhibit a hearing loss disability for VA purposes. Audiometric findings, including pure tone thresholds and Maryland CNC word list speech recognition scores, were as follows: Right Ear Frequency 500Hz 1000Hz 2000Hz 3000Hz 4000Hz Speech Discrim. (%) Pure Tone Threshold 15dB 15dB 20dB 10dB 5dB 98% Left Ear Frequency 500Hz 1000Hz 2000Hz 3000Hz 4000Hz Speech Discrim. (%) Pure Tone Threshold 20 15dB 20dB 20dB 25dB 96% The January 2020 remand ordered VA examination also shows the Veteran's hearing impairment does not reach the level of a disability for VA purposes. The audiometric findings were as follows: Right Ear Frequency 500Hz 1000Hz 2000Hz 3000Hz 4000Hz Speech Discrim. (%) Pure Tone Threshold 20dB 20dB 20dB 5dB 0dB 94% Left Ear Frequency 500Hz 1000Hz 2000Hz 3000Hz 4000Hz Speech Discrim. (%) Pure Tone Threshold 20dB 15dB 15dB 15dB 25dB 94% The Board has considered the Veteran's lay statements towards his hearing loss. The Veteran is competent to report matter of which he has personal knowledge, such as difficulty hearing. See Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159 (a)(2). However, while the Veteran is competent to describe experiencing hearing impairment, he is not competent to provide specific audiometric levels, as he has not been shown to possess the requisite training or other credentials needed to render such findings. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the evidence does not show the Veteran has or has had a hearing loss disability for VA purposes during the period on appeal. There is no doubt to be resolved in this instance. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In the absence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for bilateral hearing loss is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for migraines, including migraine variants, is remanded. The Veteran's claim for service connection for migraines must be remanded to ensure the Veteran has been provided an adequate VA examination, as it appears the negative January 2020 opinion was based partially on the inaccurate factual premise that the Veteran is a woman. See January 17, 2020 Headaches C&P Examination ("Several factors make you more prone to having migraines, including: ... Sex. Women are three times more likely to have migraines. Hormonal changes. For women who have migraines, headaches might begin just before or shortly after onset of menstruation...."). A remand is warranted to provide the Veteran another VA examination on the etiology of his diagnosed migraine condition. 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. Following the Veteran's January 2020 VA examinations, the examiner opined neither of these disabilities are related to the Veteran's military service. However, the examiner based their opinions entirely on the absence of evidence in the Veteran's service treatment records. The Board acknowledges the examiner noted the Veteran's lay statements of continuous symptoms since service in the evidence sections of the examination reports for these two disabilities, however, they then did not address them in the corresponding opinions. See January 17, 2020 Shoulder and Arm C&P Examination; January 17, 2020 Knee and Lower Leg C&P Examination ("There is no objective finding in the STR to support complaints, evaluation and treatment of [the Veteran's right knee condition and right shoulder condition] during service. Based on this finding...."); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with support data, but a reasoned medical explanation connecting the two). Thus, the January 2020 VA opinions as to whether the Veteran's right shoulder disability and right knee disability are related to his service are inadequate, and the claims must be remanded for additional examinations. 4. Entitlement to a disability rating in excess of 10 percent for lumbar intervertebral disc syndrome and arthritis is remanded. Pursuant to the Board's December 2019 remand, the Veteran was provided a VA examination on the severity of his lumbar spine disability in January 2020. At the examination, the Veteran reported his current symptoms to be a constant dull ache, back spasms, and radiation up his back. He further reported severe flare ups that occur three to five times a month, last for 24-36 hours, and are only alleviated by a prescription muscle relaxant. The examiner measured the Veteran's ranges of motion as exhibiting full ranges of motion and noted that pain was noted on the exam and caused functional loss. However, the examiner did not note the point at which pain began during range of motion testing. Moreover, the examiner did not estimate the resulting range of motion lost during a flare up, despite noting that pain significantly limits the Veteran's functional ability during a flare. A lack of evidence on where pain begins during range of motion testing is problematic for two reasons. First, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. The January 2020 VA examination does not reflect full compliance with Correia, as it does not provide the point at which pain began on range of motion testing. Such a finding is critical when it is also noted that pain results in functional loss. Second, the Veteran's lay statements indicate his back pain may begin at 0 degrees. On remand, the examiner should elicit whether the point at which pain begins is 0 degrees and determine whether this demonstrates the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (finding 38 C.F.R. §§ 4.40, 4.45, Mitchell v. Shinseki, 25 Vet. App. 32 (2011), and DeLuca v. Brown, 8 Vet. App. 202 (1995) require evaluating whether the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis (i.e., functional loss consistent with that contemplated by ankylosis)). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held examiners must offer opinions with respect to the additional limitation of motion during flare-ups or following repetitive use over time based on estimates derived from information procured from relevant sources, including a veteran's lay statements. The Court explained an examiner must do all that reasonably can be done to become informed of the functional loss in these scenarios. The Court held in Sharp that the VA examination was inadequate because the examiner, although acknowledging the Veteran in that case was not suffering from a flare-up at the time of the examination, failed to ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss regarding flare-ups in order to provide the requested opinion. The mere fact that the Veteran was not experiencing a flare-up at the time of the VA examination and that the VA examiner was unable to observe repetitive use over time are insufficient rationale as to whether additional limitation of function due to flare-ups or repetitive use over time could be determined. Here, the examiner did not address the functional loss experienced by the Veteran during flare ups. For these reasons, a remand is warranted to provide the Veteran an examination on the severity of his lumbar disability. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's diagnosed migraine, including migraine variants, disability. The examination should not be scheduled with the January 2020 VA examiner. The claims file and a copy of this remand must be made available to the examiner and reviewed in conjunction with the examination. After a thorough review of the pertinent evidence in the claims file and interview of the Veteran, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed migraines, including migraine variants, disability were caused by or are otherwise etiologically related to the Veteran's military service. The examiner is reminded that a lack of documented headaches and or migraines in service is not dispositive of whether they occurred during service. In this regard, the examiner is reminded that the Veteran is competent to attest to factual matters of which he has first-hand experience, such as events during service and observable symptomatology such as headaches. A complete rationale with clear conclusions, supporting data, and a reasoned medical explanation connecting the two is required for all expressed opinions. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's diagnosed right shoulder disability. The examination should not be scheduled with the January 2020 VA examiner. The claims file and a copy of this remand must be made available to the examiner and reviewed in conjunction with the examination. After a thorough review of the pertinent evidence in the claims file and interview of the Veteran, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right shoulder disability, including pain, was caused by or is otherwise etiologically related to the Veteran's military service. The examiner is reminded that a lack of documented complaints regarding the right shoulder during service is not dispositive of whether an injury or event occurred during service. In this regard, the examiner is reminded that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as events during service and observable symptomatology, such as pain. A complete rationale with clear conclusions, supporting data, and a reasoned medical explanation connecting the two is required for all expressed opinions. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's diagnosed right knee disability. The examination should not be scheduled with the January 2020 VA examiner. The claims file and a copy of this remand must be made available to the examiner and reviewed in conjunction with the examination. After a thorough review of the pertinent evidence in the claims file and interview of the Veteran, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right knee disability, including pain, was caused by or is otherwise etiologically related to the Veteran's military service. The examiner is reminded that a lack of documented complaints regarding the right shoulder during service is not dispositive of whether an injury or event occurred during service. In this regard, the examiner is reminded that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as events during service and observable symptomatology, such as pain. A complete rationale with clear conclusions, supporting data, and a reasoned medical explanation connecting the two is required for all expressed opinions. 4. Schedule the Veteran for a VA examination to determine the current severity of his lumbar spine disability. The examination should not be scheduled with the January 2020 VA examiner. Any and all studies, tests, and evaluations deemed necessary for evaluation of lumbar spine disabilities should be performed. In doing so, the examiner must test the Veteran's active motion and pain with weight-bearing and nonweight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare ups, and the degree of functional loss during flare ups, repetitive use over time, and pain on use. Any functional loss should be described in degrees of range of motion loss. The examiner must denote at what point pain begins during all range of motion testing. If it is not possible to provide specific measurements based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups or following repetitive use over time based on the other evidence of record and the Veteran's statements. The examiner must determine whether the Veteran's functional loss demonstrates the functional equivalent of ankylosis. If it is not possible to provide specific measurements without speculation, the examiner must also 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). 5. Then, readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.