Citation Nr: 21024385 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-19 053 DATE: April 22, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include anxiety, depression, and psychiatric residuals of a traumatic brain injury (TBI), is remanded. FINDINGS OF FACT 1. The Veteran does not have a hearing loss disability for VA compensation purposes in either ear. 2. The Veteran was scheduled for VA audiological examinations in May 2016, October 2017, and June 2019, but failed to report without good cause. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from December 1973 to July 1975. He had additional active duty service in the National Guard, with confirmed service from January 27, 1986, to February 7, 1986. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously remanded in August 2015, April 2017, and January 2019. The Board notes that the Veteran psychiatric disorder claim has been previously characterized as “entitlement to an acquired psychiatric disorder, to include anxiety and depression.” See e. g., January 2019 Board decision. However, the current medical evidence of record demonstrates that the Veteran sustained a TBI in service, resulting in his currently service-connected headache disability. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court’s decision in Clemons, the Board has re-characterized the psychiatric issues on appeal as entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and psychiatric residuals of a TBI. This will provide the most potentially favorable review of the Veteran’s claim in keeping with the Court’s holding in Clemons. Service Connection—Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Hearing Loss The Veteran maintains that he has a hearing loss disability that is related to exposure to acoustic trauma in service. Initially, the Board notes that the Veteran was scheduled for VA audiological examinations in May 2016, October 2017, and June 2019 but failed to report without good cause. See April 2021 Informal hearing Presentation (where the Veteran’s representative indicated that the “veteran failed to report for reasons unknown to us.” When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655 (2020). Therefore, his claim will be decided on the evidence currently of record. Impaired hearing is considered a disability for VA compensation purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that a veteran may establish the required nexus between current hearing loss disability and his term of military service if he can show by competent evidence that his hearing loss disability resulted from the in-service acoustic trauma even where the hearing loss disability does not arise in service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Upon review of all the evidence of record, the Board finds that the Veteran does not have a hearing loss disability for VA compensation purposes in either ear. VA treatment records include a November 2007 audiology consult note. At that time, Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 15, 20, 20, 25, and 25 respectively. In the left ear, Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 15, 20, 20, 25, and 30, respectively. Speech recognition was 100 percent in both ears. The audiogram results shown above do not meet the definition of hearing loss as required by 38 C.F.R. § 3.385. The remaining evidence of record does not demonstrate a current bilateral hearing loss disability as required by 38 C.F.R. § 3.385. Because the evidence does not show that the Veteran’s hearing loss is to a disabling degree as required under 38 C.F.R. § 3.385, the weight of the evidence demonstrates that the Veteran’s bilateral hearing loss has not met the threshold to establish current hearing loss “disability,” and the claim must be denied. REASONS FOR REMAND The Board acknowledges that the Veteran failed to report to a scheduled VA psychiatric examination in June 2019. However, the evidence currently of record is sufficient to warrant a medical opinion (despite the Veteran’s presence at the VA examination). Service personnel records include a Statement of Medical Examination and Duty Status, which shows the Veteran was involved in a motor vehicle accident on February 6, 1986, in the line of duty. He hit his face on the dashboard, injuring his lips and front teeth. A June 2017 VA medical opinion pertaining to the Veteran’s headaches indicated that the Veteran was diagnosed with “headaches secondary to TBI.” Additionally, the examiner noted that while the Veteran’s GCT (General Classification Test) was listed as 92, the examiner believed his “actual cognitive ability is much lower.” The Veteran’s thought pattern was noted to be “very slow” and the examiner indicated that the Veteran’s problems may stem from a “real inability to understand.” It was noted that the Veteran had a previous TBI and follow-up was needed. The Veteran has been awarded service connection for headaches as a result of the in-service head injury. See January 2019 Board decision. On remand, the Veteran should be scheduled for a VA TBI and psychiatric examination(s) to assess the nature and etiology of his disorders. If the Veteran fails to attend the examination(s), VA should obtain a medical opinion based on the available evidence of record. The matters are REMANDED for the following actions: 1. Schedule the Veteran for VA TBI and Psychiatric examinations by an appropriately qualified examiner(s) to determine the nature and etiology of the Veteran’s claimed psychiatric disorders, to include any psychiatric residuals of a TBI. If the Veteran fails to report for the examination, please obtain medical opinions from an appropriately qualified examiner based on a review of the file alone. The examiner(s) should provide the following opinions: (a.) Indicate whether the Veteran has any diagnosed psychiatric disorders, to include anxiety, depression, and/or psychiatric residuals of a TBI. **The examiner should assume that the Veteran sustained a head injury in service in February 1986. (b.) For each diagnosis, state whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder or psychiatric residuals of a TBI were incurred in service or are otherwise related to service. (c.) The examiner must provide a complete rationale for all opinions rendered. 2. Then, readjudicate the claim on appeal. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.