Citation Nr: 21030221 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 09-34 472 DATE: May 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied REMANDED Entitlement to service connection for an eye condition, to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for a cervical spine condition, status/post spinal fusion is remanded. Entitlement to service connection for migraine headaches is remanded. FINDING OF FACT The Veteran does not have a hearing loss disability for Department of Veterans Affairs (VA) purposes. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Air Force from March 1986 to February 1990 and from March 2003 to September 2003, with additional service in the Air Force National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of a VA Regional Office (RO). In January 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In July 2018, the Board remanded the instant issues on appeal for further development. The Board also remanded the issues of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, a throat disability, and gastroesophageal reflux (GERD). While the matter was in remand status, in a December 2020 rating decision, the RO granted service connection for disabilities related to neuropathy of the bilateral lower extremities and the throat. The RO also granted entitlement to service connection for GERD. Thus, these issues have been granted in full and are no longer before the Board. The remaining issues have returned to the Board for further appellate consideration. Service Connection Generally, to establish service connection, a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 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, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that he suffers from hearing loss as a result of noise exposure in service. The Board finds that the Veteran does not have a current hearing loss disability for VA purposes. In September 2020, the Veteran was afforded a VA examination for hearing loss. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 5 50 60 LEFT 10 15 65 75 The Veteran's speech recognition scores, using the Maryland CNC Test, were 94 percent bilaterally. The VA examiner diagnosed the Veteran with sensorineural hearing loss in both ears, noting that the Veteran does not have hearing loss at a level that is considered to be a disability for VA purposes. 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, 4000 Hertz (Hz) 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. Based on the September 2020 VA examination discussed above, the Board finds that service connection is not warranted for hearing loss. Notably, a November 2006 private treatment record shows that the Veteran had no hearing problems. Furthermore, a June 2013 private treatment record shows that the Veteran denied deafness/hearing loss, ear pain, or ear discharge, and an October 2013 private treatment record shows that an evaluation of the Veteran's systems revealed "negative for hearing loss." A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, as just discussed, there is no clinical evidence of hearing loss for VA purposes at any time during the pendency of this appeal. The Board acknowledges that the Veteran is service connected for tinnitus, and thus, in-service noise exposure has been conceded. However, as the Veteran has not been diagnosed with hearing loss for VA purposes, whether he was exposed to noise in service is not relevant in this case. Without a current disability, the claim must be denied. Accordingly, service connection for hearing loss must be denied. The preponderance of the evidence is against the claim and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for an eye condition, to include as secondary to service-connected diabetes mellitus, is remanded. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2018 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain private treatment records. Specifically, the AOJ was directed to obtain treatment records from PriMed Physicians, to include Dr. J.A. Derksen. The record does not reflect that the release for these records has been associated with the Veteran's claims file. Furthermore, neither the private records nor any documented attempts by the AOJ to obtain them are of record. On remand, a release for these records should be obtained from the Veteran. Then, these records, or documentation of the AOJ's attempt to obtain these records, should be associated with the Veteran's file. Accordingly, to ensure compliance with the directives of the July 2018 remand, the above outstanding records should be obtained, or documentation of the AOJ's attempts to obtain these records should be provided. See Stegall, 11 Vet. App. at 271. Furthermore, the Board notes that a VA opinion addressing the nature and etiology of the Veteran's eye condition was obtained in September 2020. In light of the above-stated outstanding private treatment records, the Board finds that the examiner's opinion is inadequate, as it is based on an incomplete record. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995) (stating that a medical opinion based on incomplete records is of limited probative value). Thus, a new opinion should be obtained on remand. 2. Entitlement to service connection for a cervical spine condition, status/post spinal fusion is remanded. In July 2018, the Board referred the issue of entitlement to service connection for a cervical spine condition to the RO to adjudicate in the first instance. In response to the Board's July 2018 decision, however, the RO issued a supplemental statement of the case (SSOC), rather than a rating decision, addressing the issue of entitlement to service connection for a cervical spine condition. The Board notes that issuance of an SSOC was improper and that the RO should have instead issued a rating decision in the first instance. To that end, an SSOC, by its own terms, cannot be used to decide any new issues. See 38 C.F.R. § 19.31(a). This is in violation of long-standing VA policy and relevant regulations governing what issues can be addressed in an SSOC. See id. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the Board can waive the timeliness of an appeal when actions taken by the RO lead an appellant to believe that an issue remains on appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In this case, however, the Board cannot adjudicate the claim of entitlement to service connection for a cervical spine condition on its merits. This is because the RO's failure to adjudicate this claim initially in a rating decision, as opposed to promulgating an SSOC, precludes the Veteran's ability at present to disagree with this rating decision by filing a notice of disagreement and then perfecting an appeal by filing a substantive appeal. This procedural defect (i.e., erroneously issuing an SSOC rather than a rating decision) also does not permit the Board adjudicate the issue of entitlement to service connection for a cervical spine condition on the merits and waive any timeliness with respect to an appeal. See id. As such, it was an error for the RO to re-certify this appeal to the Board at this juncture. It must thus be remanded for further action. 3. Entitlement to service connection for migraine headaches is remanded. As discussed by the Board in July 2018, the Veteran's complaints of migraine headaches have been associated with a spine condition. Therefore, the issue of entitlement to service connection for migraine headaches is inextricably intertwined with the referred issue of whether the Veteran is entitled to service connection for a cervical spine condition. As such, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of the claim of entitlement to service connection for migraine headaches must be held in abeyance pending the development requested below. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, specifically private treatment records relating to the Veteran's eye condition from PriMed Physicians, to include Dr. J. A. Derksen. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should be clearly documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. After obtaining any outstanding records, return the claims file to the examiner who performed the September 2020 VA examination for eye conditions. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the September 2020 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner must provide an opinion as to whether any diagnosed eye condition during the claim period is at least as likely as not related to an in-service injury, event, or disease. All lay statements describing the Veteran's symptoms, manifestations, and onset must be fully considered and discussed. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Adjudicate the Veteran's claim of entitlement to service connection for a cervical spine condition by promulgating a rating decision. A copy of any rating decision on this claim should be sent to the Veteran and his representative and must be included in the claims file. An appropriate length of time should be allowed for response from the Veteran and/or his representative. This claim should not be returned to the Board unless the Veteran subsequently perfects a timely appeal. Thereafter, the RO is directed to conduct all appropriate development with regard to the remanded issue of entitlement to service connection for migraine headaches inextricably intertwined with, and claimed as secondary to, the Veteran's claim for service connection for a cervical spine condition. (Continued on the next page) If and only if service connection for a cervical spine condition is granted, the AOJ shall request medical opinions regarding the relationship between the remanded/intertwined claim (migraine headaches) on both an aggravation and secondary basis. 4. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.