Citation Nr: 18154123
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 11-11 725A
DATE:	November 29, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
REMANDED
Entitlement to service connection for headaches is remanded.
Entitlement to an initial compensable rating for hemorrhoids is remanded.
FINDING OF FACT
The Veteran does not have a hearing loss disability as defined by VA regulation.
CONCLUSION OF LAW
The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 1985 to May 2005.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision.  A subsequent June 2018 rating decision granted service connection for tinnitus and frequent premature ventricular contractions.  As that decision constitutes a full grant of the benefit sought, the issues for service connection for those disabilities are no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156, 1158–59 (Fed. Cir. 1997).  
In his May 2011 VA Form 9 Substantive Appeal, the Veteran requested to appear at a hearing before a member of the Board.  In June 2016, however, the Veteran withdrew the request for a Board hearing.  See 38 C.F.R. § 20.704(e).
In July 2016 and July 2017, the Board remanded these matters for further development.
Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  That determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d). 
Service connection may be presumed for certain chronic diseases, to include sensorineural hearing loss, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service.  That presumption is rebuttable by probative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). 
Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted.  That does not mean that any manifestations in service will permit service connection.  To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic.  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b).
If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection.  38 C.F.R. § 3.303(b).  Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  Continuity of symptoms applies only to those conditions explicitly recognized as chronic.  38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 
Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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 Veteran’s STR showed that he had a shift in the hearing threshold of his left ear at 6000 Hz during service.  However, none of the audiograms in service exhibited auditory thresholds that would be classified by the VA as a disability pursuant to 38 C.F.R. § 3.385.  Specifically, the Veteran’s separation audiogram showed his pure tone thresholds in decibels were:

			HERTZ		
	500	1000	2000	3000	4000
RIGHT	05	00	00	00	05
LEFT	10	5	10	5	10

Post service, a September 2017 VA audiology examination determined that the Veteran’s hearing did not qualify as a disability for VA purposes. On audiometric testing, pure tone thresholds in decibels were:

			HERTZ		
	500	1000	2000	3000	4000
RIGHT	10	10	10	10	20
LEFT	10	5	5	10	15

Speech discrimination scores on the Maryland CNC word list were 100 percent for both the right and left ear.  The examiner noted the Veteran’s hearing shift while in service.  However, the September 2017 hearing audiogram examination showed that the auditory threshold in either ear, in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz, was not 40 decibels or greater.  Neither was it shown that the auditory thresholds for at least three of those frequencies were 26 or greater.  Also, the Veteran’s speech discrimination score in the September 2017 examination was 100 percent.  Based on the above findings, none of the objective evidence of record showed that the Veteran has a current hearing loss disability that meets the criteria set forth in 38 C.F.R. § 3.385.  Therefore, the Veteran’s hearing loss does not constitute a disability for VA purposes.
Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability.  38 U.S.C. § 1110.  The competent evidence establishes that the Veteran does not have the disability for which service connection is sought, and there can be no valid claim for service connection.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Therefore, the claim for service connection for bilateral hearing loss must be denied because the first essential criterion for the grant of service connection, competent evidence of the disability for which service connection is sought, is not met.
Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for bilateral hearing loss and service connection for bilateral hearing loss must be denied.  38 U.S.C. § 5107(b).
 REASONS FOR REMAND
In regard to his claim for service connection for headaches, the Board notes that in September 2017, the Veteran underwent a VA examination regarding his headaches.  The examiner stated that the Veteran’s headaches were less likely than not incurred in or caused by the Veteran’s service.  The examiner opined that the Veteran’s in-service occurrence of headaches and current headache disorder were not related to service as his in-service headaches were “impression vascular headache.”  The examiner did not elaborate on his opinion that the Veteran’s current headache disorder was not related to the Veteran’s in-service complaint and treatment for headaches.  As such, the Board finds that the September 2017 examiner’s opinion in inadequate for adjudication purposes.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  When an examination is inadequate, the Board must remand the case for further development.  Bowling v. Principi, 15 Vet. App. 1 (2001), 38 C.F.R. § 4.2.  
In regard to the Veteran’s claim for an initial compensable rating for his service connected hemorrhoids, as noted above, the Board previously remanded this issue for a VA examination to specifically determine if the anal fissure documented on the Veteran’s private medical records was a symptom of or related to his hemorrhoids.  In September 2017, a VA examination of the Veteran’s hemorrhoids indicated that the anal fissure was a tear in the lining of the lower rectum that caused pain during bowel movements.  The examiner stated that anal fissures do not lead to more serious problems and that most anal fissures heal with home treatment.  The examiner also stated that an anal fissure was not a hemorrhoid.  The examiner did not, however, address the specific question posed in the July 2017 Board remand as to whether the Veteran’s anal fissure was a symptom or otherwise related to his hemorrhoids. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand.  Stegall v. West, 11 Vet. App. 268 (1998).  Therefore, an additional remand of this issue consistent with the prior remand instructions is warranted.
The matters are REMANDED for the following action:
1. Schedule the Veteran for a VA medical examination by a physician (M.D.) to determine the nature and etiology of his headaches.  The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed.  All necessary tests and studies should be accomplished.  The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headaches had onset in service or within one year following separation from service, or were causally related to service. 
The examiner must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion.  
The Veteran’s lay assertions as to onset and continuity and symptomatology should be recorded and considered. Specifically, the examiner is asked to note the Veteran’s service treatment records, including from November 2001 and December 2001, reflecting treatment of headaches; a July 2010 private treatment record noting complaints of migraines; and the Veteran’s April 2011 correspondence regarding current symptoms of ocular migraines.
The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. 
If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion.
2. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected hemorrhoids.  The claims file must be made available to the examiner for review in connection with the examination, and it should be confirmed that such records were available for review.  All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail.  The examination report must include a complete rationale for all opinions expressed. 
The examiner is asked to determine the current severity of the Veteran’s service-connected hemorrhoids and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the anal fissure noted in the August 2010 private treatment record was a symptom of the Veteran’s service-connected hemorrhoids or was otherwise related to his hemorrhoids.


 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Parrish, Associate Counsel 

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