Citation Nr: 0520669 Decision Date: 08/01/05 Archive Date: 08/17/05 DOCKET NO. 04-08 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation for myofascitis pain syndrome of the low back, currently rated 20 percent disabling. 2. Entitlement to a rating in excess of 30 percent for headaches. 3. Entitlement to an initial rating in excess of 10 percent for a right knee disorder. 4. Entitlement to an initial rating in excess of 10 percent for a left knee disorder. 5. Entitlement to an initial rating in excess of 10 percent for a cervical spine disorder. 6. Entitlement to service connection for tinea pedis, dyshidrosis of the hands and feet (claimed as skin rash and peeling skin of both hands and feet) due to an undiagnosed illness. 7. Entitlement to service connection for a deviated septum due to an undiagnosed illness. 8. Entitlement to service connection for gastroesophageal reflux disease (GERD) due to an undiagnosed illness. 9. Entitlement to service connection for post-traumatic stress disorder (PTSD). 10. Entitlement to service connection for insomnia due to a nervous disorder due to an undiagnosed illness. 11. Entitlement to service connection for right ear hearing loss. 12. Entitlement to service connection for left ear hearing loss. 13. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law ATTORNEY FOR THE BOARD Christopher J. Gearin, Counsel INTRODUCTION The veteran had active service from October 1988 to October 1992, with service in Southwest Asia from January to May 1991. One of the matters the Board must address is which issue or issues are properly before it at this time. Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis for the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The issues on appeal were previously the subject of a March 26, 1999, Board decision. By means of an August 2000 Memorandum Decision rendered by a single Judge of the United States Court of Appeals for Veterans Claims (Court), the issues of service connection for a bilateral knee disorder and a cervical spine disorder were affirmed. However, the Court vacated the Board's decision with regard to an increased rating for a low back disorder and remanded the matter to the Board for further adjudication. Subsequently, in light of changes in the law brought on by the Veterans Claims Assistance Act of 2000, (VCAA), the Court issued a December 2000 Order withdrawing its August 2000 affirmance of the Board denial of service connection for a bilateral knee disorder and a cervical spine disorder and remanding these issues to the Board for readjudication based on the VCAA (which had not been enacted at the time the Board adjudicated this case in March 1999). Pursuant to the Court's Orders, the Board remanded these issues in July 2001. The RO subsequently granted the veteran's service-connection claims for a bilateral knee and cervical spine disorders. The veteran timely appealed the original ratings assigned by the RO for the bilateral knee and cervical spine disorders, and those initial rating issues are now before the Board. With respect to the issues involving hearing loss and tinnitus, the RO originally denied entitlement to service connection for these disorders in February 1998. In September 1998, the RO received the veteran's notice of disagreement to the RO's February 1998 decision regarding these two issues. According to an October 1998 telephone report of contact, the veteran reportedly put these two issues on hold. The Board notes, however, that pursuant to 38 C.F.R. § 20.204(b), the request to withdraw these two issues must be in writing. Given that the veteran did not submit a withdrawal in writing, the Board finds that the RO's February 1998 decision is not final. 38 U.S.C.A. § 7105 (West 2002). The RO issued a statement of the case for these issues in January 2004, however, they were listed as claims to reopen based on new and material evidence. The veteran appealed the issues in a substantive appeal (VA-Form 9) for these two issues, which the RO received in February 2004. The Board finds that the veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus are currently on appeal, as opposed to whether to reopen these issues based on new and material evidence. In a March 1996 decision, the Board denied the veteran's claim for service connection for sinusitis with sinus headaches. Based on medical evidence supplied by Craig N. Bash, M.D., in a November 2003 letter, the veteran appears to have raised the issue of whether to reopen the claim of entitlement to service connection for sinusitis. The RO should address this issue, if needed; however, this issue is not before the Board at this time. In July 2005, the veteran's attorney requested that the case be adjudicated as soon as possible. The issues of entitlement to an initial rating in excess of 20 percent for myofascitis pain syndrome of the low back, entitlement to a rating in excess of 30 percent for headaches, an initial rating in excess of 10 percent for both the right and left knee disorders, an initial rating in excess of 10 percent for the cervical spine disorder, and entitlement to service connection for right ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran had active duty service in Southwest Asia during the Persian Gulf War. 2. A skin rash and peeling skin of both hands and feet, diagnosed as tinea pedis dyshidrosis of the hands and feet, are not disorders of service origin or attributable to any incident therein. 3. A deviated septum is not a disorder of service origin or attributable to any incident therein. 4. The veteran has PTSD, manifested by nervousness, nightmares, and insomnia, which were documented during service, due in part to the in-service stressful situations while serving as a tank crewman in Southwest Asia. 5. Insomnia and nervousness are manifestations of the veteran's PTSD, and not separate disorders. 6. The probative and competent medical evidence of record establishes that post-service diagnosed GERD cannot satisfactorily be dissociated from active service. 7. The veteran experiences left ear hearing loss due to exposure to acoustic trauma during service. 8. The veteran experiences tinnitus due to exposure to acoustic trauma during service. CONCLUSIONS OF LAW 1. A skin rash and peeling skin of both hands and feet, diagnosed as tinea pedis dyshidrosis of the hands and feet, are not due to service or an undiagnosed disorder. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2004). 2. A deviated septum is not due to service or an undiagnosed disorder. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2004). 3. PTSD, manifested by nervousness, nightmares, and insomnia, was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2004). 4. The claim for insomnia due to a nervous disorder due to an undiagnosed illness is moot. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 4. GERD was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2004). 5. Left ear hearing loss was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). 6. Resolving reasonable doubt in the veteran's favor, tinnitus was incurred as a result of the veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military, naval or air service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and certain chronic diseases become manifest to a degree of 10 percent within one year from the date of termination of such service, such diseases shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). II. PTSD Entitlement to service connection for PTSD requires medical evidence diagnosing the condition in accordance with § 4.125(a) (2004) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304 (2004); Doran v. Brown, 6 Vet. App. 283, 289 (1994). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board initially notes that the evidence of record establishes the required diagnosis of PTSD. Although the veteran did not receive an award indicative of his participation in combat, the Board finds that the record contains credible supporting evidence that the veteran's claimed inservice stressors occurred. The veteran's service personnel records show that he was stationed in Southwest Asia from January to June 1991. His military occupational specialty is listed as an armor crewman and he specifically worked with tanks. In numerous statements since he originally filed a claim of service connection, the veteran identified numerous inservice stressors. According to the veteran's June 1992 expiration of term of service (ETS) examination report he complained of insomnia for the prior six months. The examiner indicated that there was a psychiatric abnormality. The examiner noted that the veteran was referred for nervousness and an inability to sleep. The veteran reportedly felt that he had no purpose to life. A VA examination report dated in January 1993 was negative for a psychiatric disorder. The examiner noted that the veteran had insomnia of unknown origin. The veteran provided a conflicting history while he was in Southwest Asia. He explained that he felt tense due to the war situation, although he noted at this time that he never served in combat on the front lines. His DD 214 indicates that he served as an armor crewman, specifically with tanks. According to a March 2002 VA treatment record, the examiner diagnosed the veteran with PTSD with reported symptoms of insomnia and nervousness. The reports of an April 2002 Persian Gulf War examination reflects that the veteran was diagnosed with chronic PTSD, which was more likely than not due to combat trauma while serving during the Persian Gulf War. Such evidence only provides a medical record that supports the veteran's claim. The veteran has provided various statements regarding his tour of duty in Southwest Asia. Essentially, he felt tense. He explained that he and a military buddy had a suicide pact while they were in the Persian Gulf. He also reported seeing dead bodies of fellow soldiers who died during combat. The Board observes that the veteran's service records show that he was treated for nervousness and insomnia after he returned from Southwest Asia and before he was discharged from active duty, providing more evidence in support of this claim. Overall, the veteran's described stressors have been consistent as reflected in his written statements and as described in the various VA PTSD examination reports of record. He has essentially maintained that, although he never served in actual combat (a statement which provides the veteran with great credibility), his location behind the battle lines were subject to attack from missiles. The fact that he was associated with a tank battalion lends weight to the veteran's statements that he was close to the enemy lines. The Board has no reason to dispute the veteran's statements. Most importantly, the veteran's June 1992 ETS examination report documents that he was treated for nervousness and insomnia for six months. Given that a VA examiner noted in March 2002 indicated that the insomnia and nervousness were related to PTSD, it appears likely that the veteran developed PTSD as a result of his service in Southwest Asia. In reviewing this case as a whole, in its role as fact finder, the Board finds the veteran to be a credible historian, especially in light of the findings in his service medical records. While the record does not establish the veteran's personal engagement in combat, the Board does not need to reach a determination that the veteran himself actually served in combat. In Suozzi v. Brown, 10 Vet. App. 307 (1997), the Court held that by requiring corroboration of every detail, including the veteran's personal participation, VA defined "corroboration" too narrowly. Id. at 311. In Suozzi, the Court found that a radio log, which showed that the veteran's company had come under attack, was new and material evidence to warrant reopening a claim of service connection for PTSD, despite the fact that the radio log did not identify the veteran's participation. The Court further stressed that the evidence favorably corroborated the veteran's alleged inservice stressor. Id. Moreover, in Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court reaffirmed its holding in Suozzi. In that case, the Court stated that the veteran's unit records constituted independent descriptions of rocket attacks that were experienced by the veteran's unit when he was stationed in Vietnam, which, when viewed in the light most favorable to the veteran, objectively corroborated his claim of having experienced rocket attacks. The Court reiterated that, although the unit records did not specifically identify the veteran as being present during the rocket attacks, the fact that he was stationed with a unit that was present while such attacks occurred suggested that he was in fact exposed to the attacks. In doing so, the Court underscored that it had made clear in Suozzi that corroboration of every detail of a claimed stressor is not required, and that his presence with his unit at the time that the attacks occurred corroborated his statement that he experienced such attacks personally, and thus his unit records were clearly credible evidence that the rocket attacks that he alleges occurred did, in fact, occur. Id. at 128-129. In light of the foregoing, the Board finds that the veteran has satisfied the second element required for a grant of service connection for PTSD, i.e., credible supporting evidence that the claimed inservice stressor occurred. With respect to the final element required to establish service connection for PTSD, there is no dispute that the veteran has been diagnosed with PTSD. In this regard, the Board observes that the April 2004 Persian Gulf examination findings and VA outpatient treatment records show that the veteran has PTSD related to his service in Southwest Asia. Based on this above, the evidence of record shows that VA health care providers have diagnosed the veteran as having PTSD due to stressors that took place while he was serving in Southwest Asia. Further, in light of the Court's decisions in Pentecost and Suozzi, the Board finds that the record contains credible supporting evidence that these reported inservice stressors actually occurred. Accordingly, the Board finds that service connection for PTSD is warranted. With respect to the veteran's claim for insomnia due to a nervous disorder due to an undiagnosed illness, the evidence shows that the veteran's inability to sleep is a result of his PTSD. The veteran reported that he experienced nightmares from service that prevented him from sleeping soundly. In light of the foregoing, the Board finds that insomnia is a manifestation of his PTSD and not a separate disability. Therefore, given that PTSD has been granted and the veteran's insomnia is a manifestation of the PTSD, the veteran's separate claim for insomnia must be dismissed. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). III. Left Ear Hearing Loss and Tinnitus The veteran asserts that he was exposed to acoustic trauma during service resulting in hearing loss and tinnitus. While not competent to render medical opinions, the veteran is competent to attest to his exposure to noise during service. His report of noise exposure is consistent with his military occupational specialty as an armor crewman working with tanks. Service connection for certain chronic diseases, including sensorineural hearing loss, will be rebuttably presumed if they are manifest to a compensable degree within the year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by the 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 RO denied this claim essentially because hearing loss and tinnitus were not shown during service. The RO is correct that these disorders were not diagnosed in the service medical records. However, the post-service medical evidence shows that he has left ear hearing loss and tinnitus, which are probably related to acoustic trauma during service. According to a November 1997 VA audiometric examination report, the examiner found that the veteran had constant tinnitus due to exposure to acoustic trauma in 1989 or 1990 while he was in the military. Such a report provides evidence in support of the veteran's claim. VA administered an audiometric examination in November 1997. With respect to the left ear, the results of this test showed that the veteran's speech recognition score using the Maryland CNC Test was less than 94 percent. Furthermore, the same test shows that the veteran's auditory threshold for the 4000 frequency was 40 decibels. Therefore, this medical evidence shows that the veteran meets the criteria for left ear hearing loss. 38 C.F.R. § 3.385. Resolving any reasonable doubt in the veteran's favor, the Board finds that service connection for left ear hearing loss and tinnitus is warranted. The veteran served in Southwest Asia, and while admittedly he did not serve in combat, he worked with tanks and was likely exposed to very loud noises. He has consistently maintained that he has had hearing loss and tinnitus since service. The November 1997 VA examiner found that the veteran was exposed to acoustic trauma during service and did note that the veteran currently has left ear hearing loss, for VA purposes, and tinnitus. In light of the veteran's service, these claims are granted. IV. GERD The service medical records show that the veteran complained of stomach pains. He also described trouble swallowing at times. The veteran underwent a barium swallow; however, the results of the test do not appear to be associated with the claims file. The post-service medical evidence shows that the veteran has been diagnosed with GERD. The veteran has provided a medical opinion from a Dr. Bash. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In his report, Dr. Bash indicated that he had reviewed the veteran's service medical records and medical history. Dr. Bash concluded that the complaints of stomach and throat burnings were early symptoms of the veteran's current GERD. The Board has reviewed the medical opinion and finds it entitled to probative weight. The Board finds that the evidence supports a finding of service connection for GERD. There is no specific evidence that rebuts the foregoing evidence, specifically with respect to the opinion provided by Dr. Bash. Therefore, with resolution of doubt in favor of the veteran's claim, service connection for GERD is granted. 38 C.F.R. §§ 3.102, 3.303 (2004). V. Undiagnosed Illness Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability resulting from an undiagnosed illness, or from a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed below, or from any diagnosed illness which the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. The symptoms must be manifest to a degree of 10 percent or more not later than December 31, 2006. By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. Objective indications of chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The signs and symptoms which may be manifestations of undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving the skin, (3) headaches, (4) muscle pain, (5) joint pain, (6) neurologic signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the respiratory system (upper or lower), (9) sleep disturbance, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders. 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317. a. Skin Disorder The skin disabilities documented in the post-service medical records are tinea pedis and dyshidrosis of the hands and feet, which are recognized diagnoses. 38 C.F.R. § 3.317. These skin disorders were not reported during service or for years afterward, and the record contains no medical evidence of a nexus between this disorder and the veteran's military service. The service medical records show that the veteran experienced shaving problems due to in-grown facial hairs. In late January 1991, the veteran was diagnosed with facial bumps due to in-grown hairs, and scabies of the thighs. The service examiner suggested that he change his bedding frequently to remedy the scabies. As a whole, the Board finds that the service medical records and post-service medical records provide only negative evidence against this claim. The veteran was placed on profile several times during the spring of 1992 as a result of his facial in-grown hairs. This problem was described as being due to shaving, however, and not an "undiagnosed illness" or the result of an injury or disease started during service. There is no medical finding that links the post-service tinea pedis and dyshidrosis of the hands and feet, which were diagnosed many years after service, to the shaving profiles or scabes documented during service. The Board also notes the lapse of many years between the veteran's separation from service and the first treatment for the claimed disorders. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Accordingly, this claim is denied. b. Deviated Septum The service medical records are negative for findings of a deviated septum, only providing negative evidence against this claim. The post-service medical evidence reveals that he has been diagnosed with a deviated septum. There is no post-service medical evidence of record that links the veteran's current deviated septum to an incident or injury during service. Therefore, service connection for a deviated septum is denied on a direct basis. The Board has considered the evidence supplied by Dr. Bash. Dr. Bash, however, did not discuss the veteran's deviated septum. He discussed the veteran's sinus problems, which involves an issue that is not on appeal before the Board. The evidence supplied by Dr. Bash is not relevant to the issue on appeal regarding the veteran's claimed deviated septum. A deviated septum is a recognized diagnosis. Given that it is a diagnosed condition, the law forbids service connection pursuant to 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. The Board finds that the medical evidence of record only provides evidence against this claim. VI. Veterans Claims Assistance Act VA has a duty to assist the veteran in the development of facts pertinent to his claim. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and provides an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. § 3.159(b) and (c) (2004). The Court's decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. However, where, as here, that notice was not provided at the time of the initial AOJ decision, the appellant has the right to VCAA content complying notice and proper subsequent VA process. The Board finds that the appellant has been provided VCAA content complying notice and proper subsequent VA process. The RO notified the veteran of the foregoing in letters issued in October 2003 and June 2004. The Pelegrini II Court held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. The October 2003 and June 2004 letters, in their totality, advised the veteran what information and evidence was needed to substantiate these claims. The letters also advised him what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claims. He was specifically told that it was his responsibility to support the claims with appropriate evidence. Finally, the letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The Statement of the Case and the various Supplemental Statements of the Case (SSOCs) also notified the veteran of the information and evidence needed to substantiate the claims. In this case, although the VCAA notice letter that was provided to the veteran does not specifically contain the "fourth element" (i.e., tell the claimant to provide any relevant evidence in his or her possession), the Board finds that he was otherwise fully notified of the need to give to VA any evidence pertaining to these claims. When considering the notification letters and the other documents described above, as a whole, the Board finds that he was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Although the notice provided to the veteran in October 2003 and June 2004 was not given prior to the first AOJ adjudication of the claims, the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the case was readjudicated and an additional SSOC was provided to the veteran in May 2004. That SSOC also contained VA's regulation implementing the VCAA (38 C.F.R. § 3.159). The claimant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. He was given ample time to respond to each letter. For these reasons, to decide the appeal would not be prejudicial error to the claimant. It is important to note that the basis of the Court's decision in the case was, in part, the VCAA. Based on the Court's actions in the case, the veteran must be constructively aware of the VCAA and the evidence he is required to present to prevail in this case. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). The Board does a de novo review of the evidence and is not bound by the RO's prior conclusions in this matter. As provided by 38 U.S.C. § 7104(a), all questions in a matter which under 38 U.S.C. § 511(a) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary, and such final decisions are made by the Board. Because the Board makes the final decision on behalf of the Secretary with respect to claims for veterans' benefits, it is entirely appropriate for the Board to consider whether the failure to provide a pre-initial adjudication notice constitutes harmless error, especially since a RO determination that is "affirmed" by the Board is subsumed by the appellate decision and becomes the single and sole decision of the Secretary in the matter under consideration. See 38 C.F.R. § 20.1104. In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the claimant covering all content requirements is harmless error. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 (1984). With respect to the VA's duty to assist, the RO attempted to obtain all medical records identified by the veteran. The RO obtained the VA evidence identified by the veteran. As addressed in the remand section below, the veteran, through his attorney, submitted additional medical evidence regarding his increased rating claims. He did not submit a waiver of RO consideration of this evidence. Therefore, these issues must be remanded for consideration of this evidence. This evidence is not relevant to the other issues on appeal. The Board is not aware of a basis for speculating that any other relevant VA or private treatment records exist that have not been obtained regarding the claims it has adjudicated in this case. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. An examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (B) establishes that the claimant suffered an event, injury or disease in service; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, the appellant was provided a number of VA examinations. Further opinions are not needed in this case because there is sufficient medical evidence to decide the claim. The Board finds that VA has satisfied the duty to assist the veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the veteran at every stage of this case. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of the claims. ORDER Service connection for tinea pedis, dyshidrosis of the hands and feet (claimed as skin rash and peeling skin of both hands and feet) due to undiagnosed illness, is denied. Service connection for PTSD is granted. Service connection for insomnia due to a nervous disorder due to an undiagnosed illness is dismissed. Service connection for a deviated septum, including due to undiagnosed illness, is denied. Service connection for GERD is granted. Service connection for left ear hearing loss is granted. Service connection for tinnitus is granted. REMAND The Board observes that the RO issued its last supplemental statement of the case in August 2004. In October 2004, the veteran, through his attorney, submitted additional medical records dated in August 2004, without waiving RO consideration of this evidence. These records are relevant with respect to the veteran's claims for entitlement to an initial rating in excess of 20 percent for myofascitis pain syndrome of the low back and for a rating in excess of 30 percent for headaches, an initial rating in excess of 10 percent for a right knee disorder, an initial rating in excess of 10 percent for a left knee disorder, and an initial rating in excess of 10 percent for a cervical spine disorder. A remand is required to ensure that the RO has considered these records as required. 38 C.F.R. § 19.31 (2004). With respect to the veteran's claim for entitlement to service connection for right ear hearing loss, the evidence of record indicates that the veteran was exposed to acoustic trauma during service. 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 (2004). Unlike the veteran's left ear hearing loss, there is conflicting evidence regarding whether the veteran's has right ear hearing loss that meets the criteria pursuant to 38 C.F.R. § 3.385. The Board finds that a current VA audiometric examination is necessary in order to determine whether the veteran's right ear hearing loss meets the criteria under 38 C.F.R. § 3.385. Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the veteran to undergo VA general medical examination. The entire claims file must be made available to the physician designated to examine the veteran, and the examination report should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies (to include x-rays and range of motion studies, reported in degrees) should be accomplished, and all clinical findings should be reported in detail. The examiner should indicate whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the back, neck, and knees. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, after considering the veteran's documented medical history and assertions, the physician should indicate whether, and to what extent, the veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also specifically indicate the presence or absence of any lateral instability and/or recurrent subluxation. If instability is present, the examiner should specifically state whether such instability is slight, moderate or severe. If instability is not found, the examiner should clearly so state. The examiner should set forth all examination findings, along with the complete rationale for the opinions expressed, in a printed (typewritten) report. 2. The RO should make arrangements for the veteran to be afforded a VA audiological examination to assess the severity of his claimed right ear hearing loss. The examination report should include an interpreted report of decibel losses at 1000, 2000, 3000 and 4000 Hertz, the average decibel loss, and a report of demonstrated speech recognition percentages based on Maryland CNC testing. The examiner should be informed that, based on the evidence currently of record, the veteran was exposed to acoustic trauma during service. The purpose of this audiologic examination is to determine whether the criteria pursuant to 38 C.F.R. § 3.385 are met. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause may have adverse consequences for his claim. 3. After completing any additional necessary development, the RO should readjudicate each issue addressed in this remand based on the evidence of record. If any disposition remains unfavorable, the RO should furnish the veteran a supplemental statement of the case that considers all evidence received since the August 2004 supplemental statement of the case. 38 C.F.R. § 19.31. The RO should allow the appropriate period of time for response. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs