HEARING LOSS

Summary

The veteran, who served on active duty from August 1978 to August 1981, appeals the denial of service connection for a right ear disability, specifically hearing loss, and the remand of claims for hemorrhoids and a thyroid disability. The Board denied the right ear hearing loss claim, finding the veteran did not have a current disability meeting VA criteria. Service treatment records showed normal hearing at enlistment and separation, with only a small hemorrhoidal tag noted at enlistment and later complaints of otitis media and rhinitis. Post-service audiograms and VA examinations also indicated normal hearing in the right ear, with the VA examiner concluding the condition was less likely than not related to service and did not meet VA criteria for hearing loss disability. The Board gave more weight to the audiograms than the veteran's subjective complaints, finding no present disability. The claims for hemorrhoids and thyroid disability were remanded due to inadequate development. For hemorrhoids, the Board noted conflicting evidence regarding pre-service existence and aggravation, and the VA examiner's opinion was found to conflate direct service connection with aggravation of pre-existing conditions. For thyroid disability, the Board found the service records incomplete, hindering the assessment of onset or continuity of symptoms, and remanded for further development and adequate VA examinations.

Rationale

No current disability meeting VA criteria for hearing loss.; Service treatment records and VA examinations showed normal hearing.; VA examiner opined condition less likely than not related to service.

Full Decision Text

Citation Nr: 22004956
Decision Date: 01/31/22	Archive Date: 01/31/22

DOCKET NO. 15-37 874
DATE: January 31, 2022

ORDER

Entitlement to service connection for a right ear disability, to include hearing loss, is denied.

REMANDED

Entitlement to service connection for hemorrhoids is remanded.

Entitlement to service connection for a thyroid disability, to include hypothyroidism, is remanded.

FINDING OF FACT

The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a right ear disability for VA purposes.

CONCLUSION OF LAW

The criteria for service connection for a right ear disability, to include hearing loss, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 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 from August 1978 to August 1981. The Veteran had additional service in the Army Reserves and the National Guard.

This appeal comes to the Board of Veterans' Appeals (Board) from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board issued a decision in April 2019 which, in pertinent part, denied service connection for the issues on appeal.  The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court).  In an August 2020 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's April 2019 decision to the extent that it denied service connection for the issues currently on appeal, and remanded those issues to the Board for additional development. 

In January 2021, the Board remanded the claims.

1. Entitlement to service connection for a right ear hearing loss disability is denied.

The Veteran contends that she has right ear hearing loss due to in-service hazardous noise exposure and reports that it affects her while working and even at home. See Form 9 (November 2015).  She reports developing some hearing loss since service and believes it to be the result of firing her weapon during training without proper hearing/ear protection.  See C&P Exam (June 2021). 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

For chronic diseases, such as sensorineural hearing loss, identified as such in 38 C.F.R. § 3.309(a), the disability is considered to have been incurred in or aggravated in service if manifested to a compensable degree during the period of service or within one year following service.  38 U.S.C. § 1110; 38 C.F.R. § 3.307(a)(3).  For chronic diseases not manifested to a compensable degree during service or within one year following service, service connection can still be established through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

For the purpose of applying the laws administered by the 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.

The absence of in-service evidence of a hearing loss disability is not fatal to a claim for service connection for a hearing loss disability.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of
, 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.

The absence of in-service evidence of a hearing loss disability is not fatal to a claim for service connection for a hearing loss disability.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App. at 159; 38 U.S.C. § 1154.  It has been established that the threshold for normal is from 0 to 20 decibels. Id.  The Court of Appeals for Veterans Claims (Court) has established that the threshold for normal is from 0 to 20 decibels.  Id.  In addition, service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current right ear hearing loss disability for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  To that end, the preponderance of the evidence is against service connection for a right ear disability.

Service treatment records (STRs) show that the Veteran's hearing acuity did not meet the VA standard for hearing loss disability and was within normal limits at the 1000 through 4000 Hertz (Hz) frequencies on service enlistment examination dated in July 1978.  See Military Personnel Record (March 2021).  An August 1979 STR shows complaints of right ear for the preceding two weeks with watery discharge; she was assessed with otitis media.  See Military Personnel Record (March 2021). In September and October 1980, the Veteran reported congestion, which was assessed as rhinitis and sinusitis, respectively.  Id.  Her hearing acuity did not meet the VA standard for hearing loss disability and was within normal limits at the 1000 through 4000 Hertz frequencies on examination at the time of separation in July 1978. Audiogram showed pure tone thresholds as follows:

	500 HZ	1000 HZ	2000 HZ	3000 HZ	4000 HZ

Right Ear	10	10	15	15	5

Id. 

At her Army National Guard enlistment examination in October 1996, an audiogram showed pure tone thresholds as follows:

	500 HZ	1000 HZ	2000 HZ	3000 HZ	4000 HZ

Right Ear	15	15	0	0	10

See STR-Medical (July 2014).  In the contemporaneous Report of Medical History, the Veteran reported throat trouble, but reported no problems with her ears, including no difficulty hearing.  Id. 

Post-service, on May 2013 VA examination, the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:

	500 HZ	1000 HZ	2000 HZ	3000 HZ	4000 HZ

Right Ear	15	15	15	15	10

See C&P Exam (May 2013). Speech audiometry revealed speech recognition ability of 98 percent in the right ear. Id. The examination report shows that there was normal hearing in the right ear.

On June 2021 VA examination, the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 

	500 HZ	1000 HZ	2000 HZ	3000 HZ	4000 HZ

Right Ear	15
 decibels, were as follows:

	500 HZ	1000 HZ	2000 HZ	3000 HZ	4000 HZ

Right Ear	15	15	15	15	10

See C&P Exam (May 2013). Speech audiometry revealed speech recognition ability of 98 percent in the right ear. Id. The examination report shows that there was normal hearing in the right ear.

On June 2021 VA examination, the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 

	500 HZ	1000 HZ	2000 HZ	3000 HZ	4000 HZ

Right Ear	15	15	10	15	20

See C&P Exam (June 2021). Speech audiometry revealed speech recognition ability of 98 percent in the right ear.  Id. The examination report shows that there was normal hearing in the right ear. In terms of functional impact, the examiner noted that the Veteran tends to use the phone in the left ear only and, reportedly, turns the television volume to very loud, and, at work, occasionally asks for repeats.  Id.  The examination reflects that, while she experienced subjective symptoms of right ear hearing loss, she did not have a right ear hearing loss disability for VA purposes.

In June 2021, the Veteran was also evaluated for additional ear conditions.  The examiner noted in-service otitis media and ear complaints associated with upper respiratory infections in 1979 and 1980 which were noted as resolved without sequalae in records and at the June 2021 examination.  See C&P Exam (June 2021). The examination revealed normal external ear, ear canal and tympanic membrane.  Id.  There was no diagnosis of ear or vestibular condition and no evidence or a right inner or external ear condition including vestibular and infectious condition.  Id. The VA examiner opined the Veteran's claimed ear condition was less likely than not incurred in service or caused by an in-service injury, event or illness. The examiner opined the Veteran does not have a current ear disability, and has not been diagnosed with an ear or peripheral vestibular condition.

Based on the foregoing, the Board finds that the Veteran does not have a right ear hearing loss disability.  While the Veteran is competent to report right ear hearing loss, she is not competent to say that she meets the VA standard for a hearing loss disability, which is required to establish a claim for service connection for hearing loss.  The presence of a hearing loss disability is made through an audiological examination conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85.  The Veteran's opinion is not predicated on any testing that meets the VA requirements and the presence of disability due to hearing loss as defined by VA is not susceptible to lay observation.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Therefore, the Veteran's opinion has no probative value.

The Board gives more probative weight to all of the audiograms of record, which showed that the Veteran did not meet the criteria for hearing loss for VA purposes. This is more probative than the Veteran's uncorroborated opinion as they were obtained by state-licensed audiologists.

Further, the Veteran does not have a separate right ear disability. The record fails to show a current diagnosis of a right ear disability.  The Veteran does not have a current diagnosis of otitis media.  While the June VA examiner noted in-service otitis media in 1979, he explained that it resolved without sequalae.  The Board has considered Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (pain alone can constitute a "disability" under 38 U.S.C. § 1110 because pain can cause functional impairment).  However, the Board concludes that the Veteran does not have a present disability of the right ear as she has not presented evidence of any residuals, functional loss or impairment due to her right ear, other than hearing loss, which has not met the VA criteria for hearing loss disability for VA purposes. The record shows normal right ear hearing, and the Veteran has not described any specific functional loss or impairment in regard to performing occupational tasks that is not attributable to hearing loss that does not meet VA criteria to be considered a disability.

In the absence of proof of a present disability due to disease or injury, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225
 cause functional impairment).  However, the Board concludes that the Veteran does not have a present disability of the right ear as she has not presented evidence of any residuals, functional loss or impairment due to her right ear, other than hearing loss, which has not met the VA criteria for hearing loss disability for VA purposes. The record shows normal right ear hearing, and the Veteran has not described any specific functional loss or impairment in regard to performing occupational tasks that is not attributable to hearing loss that does not meet VA criteria to be considered a disability.

In the absence of proof of a present disability due to disease or injury, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Here, the Veteran does not meet the criteria for a right ear hearing loss disability as defined by VA regulations at 38 C.F.R. § 3.385.  The Veteran has neither identified nor provided a favorable medical opinion to weigh in this matter.

Accordingly, the claim is denied.  There is no doubt to resolve. 38 U.S.C. § 5107(b).

REASONS FOR REMAND

2. Entitlement to service connection for hemorrhoids is remanded.

3. Entitlement to service connection for a thyroid disability, to include hypothyroidism, is remanded.

The Veteran contends that, during service, she had weight loss and tremors in 1997, leading to her hyperthyroidism diagnosis.  See C&P Exam (May 2013).  As to her hemorrhoids, the Veteran contends that her hemorrhoids got significantly larger during her time in service from 1978 to 1981.  See C&P Exam (July 2021).  She reported undergoing hemorrhoid banding in the early 1980s shortly after separation, the records of which she has been unable to retrieve.  Id. 

The Board finds that remand is necessary to ensure that VA has met its duty to assist the Veteran in the development of her claims.  A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand.  Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).

First, while complete service treatment records (STRs) and service personnel records (SPRs) have been requested, such have not been obtained.  The record appears to be incomplete insofar as it does not reveal a complete set of the Veteran's SPRs and STRs from her period of service in the Army Reserve and in the Army National Guard.  Significantly, the Veteran's dates of service, other than for her active duty between August 1978 and August 1981, are unclear.  In this regard, the record shows that following active service, the Veteran served in the Army Reserve and Army National Guard.  The RO, however, has not fully verified the Veteran's Army Reserve or Army National Guard service dates, to include any periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA).

Additionally, there is no indication in the record that the RO has adequately attempted to obtain the Veteran's STRs related to her period of service in the Army Reserve or Army National Guard, other than for the period from November 1996 to November 1997, which too remains incomplete.  Such information is relevant in the sense that it could help the Veteran establish the onset, or continuity of symptoms, of her disabilities.  The Board observes that the Veteran submitted copies of Army National Guard SPRs in August 2021; however, there is no indication that this is a complete set.  A request was submitted to the National Personnel Records Center (NPRC) in March 2021; however, no inquires with the Department of the Army, the Army National Guard or any other appropriate records repository have been made.  Lastly, a May 2021 letter suggests that the records are unavailable, but does not indicate what steps have been taken to obtain those records other than seeking additional information from the Veteran herself, which she attempted to provide. 

Second, remand is necessary to obtain an adequate VA examination and medical opinion, because previous VA examinations, including in May 2013, have been found inadequate.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. 

Generally, a medical opinion should address the appropriate theories of entitlement.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty.  38 C
 unavailable, but does not indicate what steps have been taken to obtain those records other than seeking additional information from the Veteran herself, which she attempted to provide. 

Second, remand is necessary to obtain an adequate VA examination and medical opinion, because previous VA examinations, including in May 2013, have been found inadequate.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. 

Generally, a medical opinion should address the appropriate theories of entitlement.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty.  38 C.F.R. § 3.303(a).  A preexisting injury or disease is considered aggravated by military service where there is an increase in disability during service, absent a specific finding that the increase in disability was due to the natural progress of the disease.  38 C.F.R. § 3.306(a).  Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111; VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

Here, while the prior VA examination from May 2013 has been found inadequate, the VA examination obtained on remand also presents with problems.  First, the VA examination concludes that the Veteran's hemorrhoids existed prior to service and were not aggravated by service without explaining the basis for its finding.  Specifically, it is unclear whether hemorrhoids actually existed prior to service.  To that effect, the Veteran's enlistment physical in July 1978 shows findings of normal anus and rectum as well as a notation of small hemorrhoidal tag.  The associated Report of Medical History shows no complaints of piles or rectal disease, or frequent or painful urination.  In September 1979, the Veteran was noted to have blood in fecal matter.  In July 1981, the Veteran reported hemorrhoids lasting for a week.  Id.  Her separation physical from July 1981 shows abnormal anus and rectum with external hemorrhoids.  The available records also show that at the time of the Veteran's October 1996 enlistment, she reported "piles of rectal diseases;" however, no findings of such appear in the accompanying physical. 

The evidence is insufficient on the question of whether there is clear and unmistakable evidence that hemorrhoids pre-existed service and were not aggravated by service.  Initially, the VA requested an opinion as to whether the Veteran's hemorrhoids disability is at least as likely as not related to her active duty.  See Exam Request (May 2021).  In response to that request, a July 2021 VA examination shows an opinion that hemorrhoid disability is "at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness," because 

Although a direct service connection may not be allowed,                    there is sufficient evidence to support Veteran's pre-existing hemorrhoidal tag was aggravated beyond normal progression               (of a hemorrhoidal skin tag) and progressed into three                     thrombosed external hemorrhoids in 1981 during active duty. Aggravation of a condition that existed prior to service can be established.

Clarification was sought, because the July 2021 VA examination conflated direct service connection requirements with those for a pre-existing disability.  The responding October 2021 VA medical opinion found that the Veteran's thyroid disability, "which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service injury, event or illness."  After listing the in-service notations associated with hemorrhoids, the examiner concluded that there was no "sufficient evidence to support Veteran's pre-existing hemorrhoidal tag was aggravated beyond normal progression as there is no ongoing or chronic complaint, diagnosis or treatment for hemorrhoids post service."  The examiner did not, however, address the appropriate legal standard of whether clear and unmistakable evidence shows that the disability pre-existed service and was not aggravated by service. Thus, as VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the Veteran's disease or injury existed prior to service and clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service, the Board finds that an adequate examination
-service notations associated with hemorrhoids, the examiner concluded that there was no "sufficient evidence to support Veteran's pre-existing hemorrhoidal tag was aggravated beyond normal progression as there is no ongoing or chronic complaint, diagnosis or treatment for hemorrhoids post service."  The examiner did not, however, address the appropriate legal standard of whether clear and unmistakable evidence shows that the disability pre-existed service and was not aggravated by service. Thus, as VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the Veteran's disease or injury existed prior to service and clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service, the Board finds that an adequate examination and addendum opinion is necessary.

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.

The matters are REMANDED for the following action:

1. Verify the dates of the Veteran's service in the Army Reserve and Army National Guard.  If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS).

(a.) Obtain the Veteran's complete service personnel records pertaining to her service in the Army Reserve and Army National Guard. Document all requests for information as well as all responses in the claims file.

(b.) Obtain the Veteran's complete STRs pertaining to her service in the Army Reserve and Army National Guard.  Document all requests for information as well as all responses in the claims file.

(c.) If necessary, notify the Veteran if SPRs and/or STRs are unavailable through official sources and provide her an opportunity to provide copies of those records.

2. Thereafter, schedule the Veteran for a VA examination of her hemorrhoids.  The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician.  Based on review of the record and interview of the Veteran, detail the Veteran's reported hemorrhoid symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed hemorrhoids.  The opinion should, among other things, include a discussion of the Veteran's documented history and assertions.  The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s).

The clinician should provide an opinion, with supporting rationale, as to:

(a.) Whether hemorrhoids clearly and unmistakably preexisted service and, if so, whether it was clearly and unmistakably not aggravated by service. 

1.	Consider the (1) relevant STRs dated in in July 1978 showing findings of normal anus and rectum as well as a notation of small hemorrhoidal tag; (2) July 1978 Report of Medical History with no complaints of piles or rectal disease, or frequent or painful urination; (3) September 1979 notation of blood in fecal matter; (4) a July 1981 report of hemorrhoids lasting for a week; (5) separation physical from July 1981 showing abnormal anus and rectum with external hemorrhoids; (6) October 1996 enlistment reports of "piles of rectal diseases," but no findings of such in the accompanying physical; and (7) the Veteran's history and assertions.

(b.) If the examiner finds that hemorrhoids either did NOT clearly and unmistakably preexist service, or were clearly and unmistakably NOT aggravated by service, the examiner must opine whether the disability at least as likely as not had onset during active duty.

3. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached.  The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

 

 

Roya Bahrami

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. M. Pesin

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.