Citation Nr: 22016992 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-54 356 DATE: March 23, 2022 ORDER Entitlement to an initial compensable rating for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for nerve damage of the legs is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a headache disorder is remanded. FINDINGS OF FACT 1. The Veteran has had no worse than Level I hearing loss in the left ear. 2. The weight of the evidence is against finding that the Veteran has had a right ear hearing loss for VA purposes during the appeal period or proximate thereto. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for left ear hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from September 1985 to August 1986. The appeal originates from an April 2016 decision of a Department of Veterans Affairs (VA) Regional Office. 1. Entitlement to an initial compensable rating for left ear hearing loss. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.85(a). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). On VA audiological examination in March 2016, puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 15, 20, and 55, for an average of 26.25. The speech recognition score, using the Maryland CNC Test, was 100 percent in the left ear. Evaluating the audiological test results cited above (assigning a numeric designation of I for the nonservice-connected right ear), the Board finds that the numeric designations of hearing impairment are Level I for the right ear and Level I for the left. When these designations for the right and left ears are applied to Table VII (Percentage Evaluation for Hearing Impairment, Diagnostic Code 6100), the percentage of disability for hearing impairment is zero percent. Such fails to support the assignment of a compensable rating for left ear hearing loss. Consideration is given to the functional effects of the Veteran's left ear hearing loss. He describes difficulty understanding speech and having to ask others to repeat themselves. The lay statements are competent and credible. However, in light of the Court of Appeals for Veterans Claims' (Court) holdings in Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007) and Doucette v. Shulkin, 28 Vet. App. 366 (2017), his inability to hear or understand speech or to hear other sounds in various contexts have been sufficiently measured during the examination and such functional effects are contemplated by the schedular rating criteria. Accordingly, an initial compensable rating for left ear hearing loss is not warranted. 2. Entitlement to service connection for right ear hearing loss. 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. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Hearing loss is a chronic disease under 38 C.F.R. § 3.309(e) with a presumptive period of one year. 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 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. The Veteran contends that he has right ear hearing loss related to in-service noise exposure from artillery, gunfire, and other sources. He was afforded an examination in March 2016 and found not to have hearing loss for VA purposes in the right ear (including a speech recognition score of 100 percent based on the Maryland CNC Test). He has not submitted medical evidence reflecting a current diagnosis of right ear hearing loss for VA purposes. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The weight of the evidence fails to establish a current diagnosis of right ear hearing loss for VA purposes. The March 2016 examiner considered the Veteran's lay statements and symptomology but determined that he did not have right ear hearing loss for VA purposes based on the results of audiological testing. The examiner's audiometric findings for the right ear were 15, 15, 10, 10 and 15 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Speech discrimination in the right ear was 100 percent. The Veteran offers no medical evidence establishing a current disability per 38 C.F.R. § 3.385. Indeed, while he is competent to report his perception of having diminished hearing, the determination of whether hearing loss meets the threshold requirements under 38 C.F.R. § 3.385 is one requiring professional training. He is not shown to possess that competency. The Board notes that the Veteran has challenged the adequacy of the March 2016 examination. See July 2016 NOD. However, he offers no specifics as to how the examination was inadequate nor is such apparent on review of the examination report. The examiner solicited a detailed history from the Veteran and performed appropriate audiological testing to evaluate the service-connected left ear hearing loss and determine that he did not have right ear hearing loss for VA purposes. Accordingly, in the absence of evidence of a current hearing loss disability, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disorder is remanded. 2. Entitlement to service connection for a left foot disorder is remanded. 3. Entitlement to service connection for a right foot disorder is remanded. 4. Entitlement to service connection for a left knee disorder is remanded. 5. Entitlement to service connection for a right knee disorder is remanded. 6. Entitlement to service connection for a back disorder is remanded. 7. Entitlement to service connection for nerve damage of the legs is remanded. The Veteran contends that he has a hip replacement and bilateral foot, bilateral knee, and back disorders that had their onset in service and have progressively worsened over time. See July 2015 Claim; July 2016 NOD; July 2016 Statement. He claims a nerve disability secondary to a back disorder. Private treatment records show that he had a left hip replacement in 2013 and has diagnoses of mild degenerative disc disease of the lumbar spine and sciatica in 2015. He complains of bilateral foot and knee pain, and service treatment records show that he reported foot trouble at separation due to painful arches when wearing combat boots. As there is evidence suggesting current disabilities, in-service symptoms, and an indication that they may be linked, he should be afforded VA examinations. 8. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he has posttraumatic stress disorder (PTSD) due to in-service stressors relating to fear and exposure to explosions and gunfire. See July 2015 and August 2015 Statements. Private treatment records indicate diagnoses of depression and anxiety in February 2016. Service treatment records show that he received a mental status evaluation in July 1986 in connection with his Chapter 14 discharge for a pattern of misconduct and commission of a serious offense. See July 2015 Military Personnel Record. Though he was found to have no apparent disorder or serious psychiatric abnormalities, he reported depression at separation, which was indicated to be situational due to family problems. As there is evidence suggesting a current disability, in-service symptoms, and an indication that they may be linked, he should be afforded a VA examination. 9. Entitlement to service connection for a headache disorder is remanded. The Veteran contends that he has a headache disorder that had its onset in service and has progressively worsened over time. See July 2016 NOD. VA treatment records reflect an assessment of headaches in July 2016 with reporting of headaches since age 18. Service treatment records indicate that the Veteran was seen for complaints of headaches in November 1985 and May 1986; on the former occasion, he reported having headaches prior to enlistment (though his January 1985 enlistment report of medical history and examination is negative for headaches). See July 2015 Military Personnel Record. As there is evidence suggesting a preexisting disability which may have been aggravated beyond natural progress by service, he should be afforded a VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for hip, foot, knee, back, and neuropathy examinations to determine the nature and etiology of his claimed left hip, bilateral foot, bilateral knee, low back, and nerve disabilities. The examiner is asked to address the following: a. Is it at least as likely as not, or an approximate balance of the evidence, that a left hip disorder had its onset in or is otherwise etiologically related to active service? b. Is it at least as likely as not, or an approximate balance of the evidence, that a bilateral foot disorder had its onset in or is otherwise etiologically related to active service? The examiner must address the July 1986 report of medical history noting painful arches when wearing combat boots. c. Is it at least as likely as not, or an approximate balance of the evidence, that a bilateral knee disorder had its onset in or is otherwise etiologically related to active service? d. Is it at least as likely as not, or an approximate balance of the evidence, that a back disorder had its onset in or is otherwise etiologically related to active service? e. Is it at least as likely as not, or an approximate balance of the evidence, that a nerve disorder of the legs (to include sciatica) was proximately caused by a back disorder? f. Is it at least as likely as not, or an approximate balance of the evidence, that a nerve disorder of the legs (to include sciatica) underwent any incremental increase in disability, regardless of its permanence, due to a back disorder? 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of his claimed PTSD, depression, and anxiety. The examiner is asked to address the following: a. Identify/diagnose any mental disorder that exists or has existed during the appeal. Specify whether the Veteran has a DSM-5 diagnosis of PTSD. If a diagnosis of a mental disorder is not made, reconcile the finding with private and VA treatment records indicating diagnoses of depression and anxiety. b. If a diagnosis of PTSD is made, the stressor relied on should be noted in the record. c. For any mental disorder, is it at least as likely as not, or an approximate balance of the evidence, that the disorder had its onset in service or is otherwise etiologically related to any in-service stressor? The examiner must address the July 1986 mental status evaluation and report of medical history noting situational depression due to family problems, and the June 1997 application for pension due to depression and stress. 3. Schedule the Veteran for a headache examination to determine the nature and etiology of his claimed disorder. The examiner is asked to address the following: a. Is there clear and unmistakable evidence that a headache disorder preexisted active service? The examiner must address the November 1985 service treatment record noting headaches prior to enlistment and the July 2016 VA treatment record indicating headaches since age 18. b. If so, is there clear and unmistakable evidence that a preexisting headache disorder was not aggravated beyond natural progress by service? c. If the examiner finds that a headache disorder did not preexist service, is it at least as likely as not, or an approximate balance of the evidence, that the disorder had its onset in or is otherwise etiologically related to active service? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.