Citation Nr: 1342761 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 08-25 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial disability in excess of 10 percent for traumatic arthritis of the lumbar spine prior to July 5, 2012, and in excess of 20 percent from July 5, 2012. REPRESENTATION Appellant represented by: Dax Lonetto, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from October 2001 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for traumatic arthritis of the lumbar spine and assigned a noncompensable evaluation from March 16, 2006. The Veteran appealed for a higher rating. In a June 2009 rating decision, the evaluation for the lumbar spine disability was increased to 10 percent disabling, effective March 16, 2006. In an October 2012 rating decision, the evaluation was increased to 20 percent, effective July 5, 2012. In October 2010, the Board remanded the claims to afford the Veteran a hearing. In June 2011, the Veteran presented testimony at a travel Board hearing. A transcript of the hearing is of record. In October 2011, the Board remanded the claims for further development. As noted in the October 2011 remand, the Veteran's representative has raised the issues of entitlement to service connection for a right shoulder disability and a bilateral upper extremity to include as secondary to service-connected mild traumatic arthritis of the cervical spine. These issues have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The October 2011 remand had also referred the issue of entitlement to an increased evaluation for the service-connected psoriasis; a rating action issued in April 2013 denied a compensable evaluation. He was notified of this decision on April 19, 2013. No notice of disagreement has yet been submitted with this denial; therefore, the issue is not before the Board for appellate consideration at this time. The issue of entitlement to an initial disability in excess of 10 percent for traumatic arthritis of the lumbar spine prior to July 5, 2012, and in excess of 20 percent from July 5, 2012, is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT Hearing loss for VA purposes is not currently shown in either ear. CONCLUSION OF LAW The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in July 2006, prior to the initial adjudication of the claim in November 2006. The record also reflects that the service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. In addition, the Veteran has been afforded VA audiology examinations. Moreover, the Board concludes that there has been substantial compliance with the Board's October 2011 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case was last remanded in October 2011 for further VA examination to determine the nature and etiology of any current bilateral hearing loss. The requested examination with adequate testing has been obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim and the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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, 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. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has hearing loss as the result of acoustic trauma or the use of Accutane during service. Specifically, he testified that he was exposed to acoustic trauma on Edwards Air Force Base from airplanes that broke the sound barrier. He also asserts that he used Accutane for a few days which has a known potential side effect of hearing loss. He submitted literature in June 2011 to support his contention. The Veteran's service treatment records contain an August 2005 record that documents his complaint of hearing loss from using Accutane over a year earlier. A September 2005 record reflected an impression of sensorineural hearing loss AU. The recommendation stated that Accutane was known to have otologic effects. It would appear that the Veteran had recovered most of his hearing at that time except for a loss around 4000 cycles per second which is more suggestive of noise exposure than ototoxicity. It was stated that most of his symptoms and the appearance of the audiogram could be due entirely to noise exposure and not Accutane, but there was no way to be sure of this. Thus, the Veteran had documented complaints of hearing loss during service. Post-service, the Veteran underwent a VA audiology examination in October 2006. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 15 30 LEFT 10 0 5 30 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The examiner commented that the Veteran's configuration of hearing loss was more typical when due to noise exposure than ototoxicity, infection and otosclerosis. His hearing was normal when he entered military service; therefore it was unlikely that his hearing loss was congenital. In a June 2011 letter, a private physician opined that the within the reasonable bounds of medical probability, it is at least as likely as not (50/50 probability) that the Veteran's hearing loss is service-connected. At his June 2011 hearing, the Veteran indicated that his hearing loss had worsened. The Board remanded the claim for further VA audiology examination. The Veteran underwent a VA audiology examination in July 2012. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 15 35 LEFT 10 5 5 25 35 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The Board concedes that the Veteran had documented complaints of hearing loss in service. The Board notes, however, that during the course of the appeal, current bilateral hearing loss disability for VA purposes has not been shown. See 38 C.F.R. § 3.385. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). Moreover, despite the opinion of the June 2011 private physician, which tends to establish a nexus between current hearing loss and service, the Board emphasizes that 38 C.F.R. § 3.385 sets forth clear requirements for establishing hearing loss disability; a mere diagnosis of hearing loss is not enough. Absent competent, probative evidence of hearing loss disability as defined by 38 C.F.R. § 3.385, the claim must be denied, fundamentally, because the Veteran does not have the disability for which service connection is sought. As, under these circumstances, the medical nexus question is not reached, the competent opinion in this regard has no bearing on the resolution of this claim. The Board also has considered the assertions the Veteran has advanced on appeal, particularly that he suffers from hearing loss that is related to Accutane use in service. However, the existence of hearing loss disability is a matter requiring medical testing to determine. As a layperson without the appropriate medical training or expertise, the Veteran simply is not competent to render a probative (i.e., persuasive) opinion that he suffers from hearing loss to a disabling degree or to determine the etiology of any hearing loss disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). Hence, his assertions are not competent medical opinions. The Board finds the medical evidence to be of greater probative value than the Veteran's lay contentions. In summary, in the absence of competent evidence establishing current hearing loss in either ear, the claim for service connection for bilateral hearing loss is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND The Board finds that the Veteran's claim for an increased rating for his service-connected lumbar spine disability warrants further development. The service treatment records show that in February 2005, the Veteran was involved in a motor vehicle accident and sustained a whiplash injury to his neck and back. The assessment included back pain. Service connection was initially established for traumatic arthritis of the lumbar spine. See November 2006 rating decision. Following a VA examination of the spine in April 2009, the examiner rendered a diagnosis of mild degenerative disc disease of the lumbar spine and noted that the problem associated with the diagnosis was traumatic arthritis of the lumbar spine. The examiner did not provide any further elaboration or rationale. Subsequent private treatment records show that the Veteran was involved in a motor vehicle accident in May 2011 and sustained injuries to his spine. A June 2011 examination included the following diagnoses: status post MVA of May 14, 2011 with hyperextension/hyperflexion type injury to the spine; strain/sprain sacroiliac joints; and rule-out lumbar occult disk injury. A July 2011 private MRI report of the lumbar spine revealed the following: thoracolumbar levoscoliosis and L4-5 level: loss of disk height and hydration with disc herniation indenting the anterior thecal sac. Herniation remains at the level of the disc space. Posterolateral disc bulge in combination with facet atrophy produces bilateral neural foramen stenosis. Posttraumatic etiology cannot be excluded. In a September 2012 medical opinion report, a VA physician opined that the Veteran's degenerative disc disease is less likely as not caused by or as a result of the Veteran's service-connected arthritis. With respect to a rationale, the physician stated that the Veteran's degenerative disc disease referred to here relates to the L4/L5 vertebral level with loss of disc height and hydration with disc herniation indenting the anterior thecal sac according to the July 2011 MRI report. The physician noted that the Veteran was involved in a car accident in May 2011 and concluded that the resulting disc herniation would have resulted from that event. However, the physician also noted that there was the start of degenerative disc disease starting in July 2009 but did not provide any further elaboration with respect to that finding. The Board finds that neither the April 2009 VA examiner or the September 2012 VA physician have provided adequate rationales with respect to whether the degenerative disc disease of the lumbar spine is caused or aggravated by the Veteran's service-connected traumatic arthritis of the lumbar spine. Thus, a remand is warranted for further clarification on this matter. Accordingly, the case is REMANDED for the following action: 1. The RO shall forward the claims file to an appropriate VA examiner for the purpose of ascertaining whether degenerative disc disease of the lumbar spine is related to service-connected traumatic arthritis of the lumbar spine. The Veteran may also be scheduled for another VA examination if this is deemed necessary. The examiner is requested to review all pertinent records associated with the claims file and all relevant electronic records, including the Veteran's service treatment records and post-service medical records. The examiner should indicate whether, based on review of the claims file, with complete rationale, it is at least as likely as not (a 50 percent probability or greater) any degenerative disc disease of the lumbar spine is caused or aggravated by the service-connected traumatic arthritis of the lumbar spine. In rendering the requested opinions, the physician should specifically consider and discuss the following: findings from the April 2009 VA examination report, the June 2011 private treatment report; July 2011 private MRI reports of the lumbar spine, and the September 2012 opinion report authored by a VA physician. The examiner is asked to provide an explanation for all conclusions reached based on medical principles and the medical and lay evidence of record. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. 2. If further examination is needed, the Veteran must be advised of the importance of reporting to the examination and of the possible adverse consequences, to include the denial of the claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2013). A copy of any notification letter sent to the Veteran advising him of the time, date, and location of any needed examinations must be included in the claims folder and must reflect that they were sent to his last known address of record. If he fails to report to any examinations deemed necessary, the claims folder must indicate whether the notification letter was returned as undeliverable. 3. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his attorney must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs