Citation Nr: 0810504 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-12 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial compensable evaluation for right ear hearing loss. 2. Entitlement to service connection for back disorder. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J. M. Macierowski, Associate Counsel INTRODUCTION The veteran served on active duty from March 1981 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). The issue of entitlement to an effective date prior to October 23, 2003, for the grant of service connection for right ear hearing loss is addressed in the Remand portion of the decision below, and is remanded to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The veteran's right ear hearing loss is manifested by Level II hearing acuity. 2. The veteran's service medical records show that the veteran reported experiencing low back pain in February 1988; however, on service separation, the veteran denied recurrent back pain, and the physical examination showed a normal back. 3. The medical evidence shows current diagnoses of lumbar strain and degenerative joint disease of the lumbar spine. 4. The medical evidence of record does not relate the veteran's back disorders to his military service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for right ear hearing loss are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86 (2007). 2. A back disorder was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the veteran's claims for service connection and an increased initial evaluation, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication of the veteran's claims, a letter dated in December 2003 satisfied the duty to notify provisions; an additional letter was sent in March 2007. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although VCAA notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication); Overton v. Nicholson, 20 Vet. App. 427 (2006). The veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The veteran was also accorded VA examinations in December 2004 and February 2007. 38 C.F.R. § 3.159(c) (4). There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service Connection for a Back Disorder Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the veteran's claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran's service medical records show that the veteran reported a single incidence of low back pain in February 1988. However, on service separation in April 1992, the veteran denied experiencing recurrent back pain, and the physical examination of his back was normal. Subsequent to service, VA outpatient treatment records dated from September 2003 through November 2003 showed diagnosis of musculoskeletal lumbar strain and degenerative joint disease of the lumbar spine. During the December 2004 VA examination, the veteran noted that his initial inservice back injury occurred when a Bradley infantry fighting vehicle in which he was riding collided with another Bradley in 1990. Although his back felt fine at service separation, he began experiencing back problems in late 2003 or early 2004 after moving into a new home. The physical examination was essentially normal, and the VA examiner diagnosed the veteran with episodes of lumbar spine strain with musculoskeletal origin. The evidence of record does not relate the veteran's back disorder to his military service. The sole medical opinion of record as to the relationship between the veteran's current back disorder and his military service was by the VA examiner who conducted the December 2004 examination. The VA examiner concluded that the veteran's one time complaint of back pain in service was not related to his current back disorder. The rationale for this opinion included that the veteran was able to complete his tour of duty without further back complaints after the motor vehicle accident, and subsequent to service discharge the veteran did not seek treatment for a back disorder for over 10 years between the date the veteran originally claimed his injury occurred (1990), and the time he started experiencing back pain (following his move into a new home in late 2003 or early 2004). See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). No other opinions exist in the record pertaining to a nexus between the veteran's military service and his current back disorder. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not base a decision on its own unsubstantiated medical conclusions). Accordingly, service connection for a back disorder is not warranted. Because the evidence of record does not relate the veteran's back disorder to his military service, the preponderance of the evidence is against his claim for service connection. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initial Compensable Evaluation for Right Ear Hearing Loss Once service connection is granted, disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2007). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by puretone audiometric tests. To evaluate the degree of disability from service-connected defective hearing, the Schedule establishes eleven levels of impaired efficiency, numerically designated from Level I to Level XI. Level I represents essentially normal audio acuity, with hearing loss increasing with each level to the profound deafness represented by Level XI. 38 C.F.R. § 4.85, Tables VI, VII (2007). In certain situations, the rating criteria provide for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. If the puretone threshold is greater than 55 decibels at each of four specified frequencies (1000 Hertz, 2000 Hertz, 3000 Hertz and 4000 Hertz), or if the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a), (b). However, none the puretone threshold averages, as stated in all of the audiological evaluations of record that are considered probative for VA rating purposes, satisfy the regulatory requirements of 38 C.F.R. § 4.86(a) for a pattern of exceptional hearing impairment in the right ear. Therefore, 38 C.F.R. § 4.86 does not apply. Service connection for right ear hearing loss was granted by a January 2005 rating decision, and a noncompensable evaluation assigned under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100, effective December 23, 2003. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2007). An April 2007 rating decision found that the proper effective date was October 23, 2003, the date of the veteran's claim for service connection. The veteran, through his representative, asserts that his hearing is more severe than indicated by the assigned evaluation, and asserts that a compensable evaluation is warranted. Initially, the Board finds that a private April 2003 hearing evaluation is not probative for VA purposes. Although the veteran's word recognition score was reported at 96 percent, the individual results at the 5 decibel levels considered in evaluating hearing loss for VA purposes were charted, but not stated numerically. Accordingly, the April 2003 hearing cannot be considered, as it fails to provide the specific information necessary and consistent with the regulations pertinent to hearing acuity evaluations under 38 C.F.R. § 4.85 (a). See Kelly v. Brown, 7 Vet. App. 471 (1995) (holding that neither the Board nor the RO may interpret graphical representations of audiometric data). The remaining two audiological evaluations of record which meet the requirements of 38 C.F.R. § 3.385 (a) include the December 2004 VA examination and the February 2007 VA examination. Based on the results of those audiological, an initial compensable evaluation for right ear hearing loss is not warranted. The December 2004 VA examination reflects an average puretone decibel loss of 34 decibels in the right ear, with a word recognition percentage of 100 percent. The February 2007 VA examination reflects an average puretone decibel loss of 48.75 decibels, with a word recognition percentage of 88 percent. Using the rating criteria, the December 2004 VA examination findings result in Level I hearing acuity; the February 2007 VA examination findings result in Level II hearing acuity. See 38 C.F.R. § 4.85, Table VI. Because the veteran's left ear hearing loss is nonservice-connected, the pertinent regulations provide that for the purposes of determining the disability evaluation for the service-connected ear, the nonservice-connected ear must be considered of Level I hearing acuity. 38 C.F.R. § 4.85 (f). Affording the veteran the benefit of the most severe hearing acuity for the appeal period, and thus applying Level II hearing acuity for the right ear and Level I for the left ear to Table VII, the ultimate result is a noncompensable evaluation for hearing impairment. 38 C.F.R. § 4.85(h). As no medical evidence of record exists to show that the veteran's right ear hearing loss has been greater over the course of the appeal period, an initial compensable evaluation for right ear hearing loss is not warranted. Although the veteran contends that his right ear hearing loss is more severe, and therefore warrants a higher, compensable evaluation, the assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). ORDER An initial compensable evaluation for right ear hearing loss is denied. Service connection for a back disorder is denied. REMAND A May 1995 rating decision denied the veteran's claim for service connection for hearing loss; that decision was not appealed, and is final. An August 2002 rating decision declined to reopen the veteran's claim for service connection for hearing loss on the basis that no new and material evidence had been submitted; that decision was also not appealed, and is final. A January 2005 rating decision granted a noncompensable evaluation for service connection for right ear hearing loss, effective December 23, 2003; the veteran perfected an appeal with respect to the issue of entitlement to an initial compensable evaluation. However, an April 2007 rating decision amended the effective date of service connection to October 23, 2003, the date of the veteran's claim to reopen. The language of correspondence to the RO from the veteran's representative, dated in May 2004, indicated specifically that the veteran disagreed with April 2007 rating decision assigning the amended effective date of October 23, 2003, thus constituting a notice of disagreement (NOD). The filing of an NOD initiates the appeal process. See Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). Although the January 2008 supplemental statement of the case, issued with respect to the veteran's claim for an initial compensable evaluation for right ear hearing loss, noted the amended effective date, it failed to provide the regulations pertinent to effective date issues, or to discuss why an earlier effective date for service connection for right ear hearing loss was not warranted. Accordingly, the Board concludes that VA has yet to issue a statement of the case with respect to the issue of entitlement to an effective date prior to October 23, 2003, for a grant of service connection for right ear hearing loss, and is therefore obligated to remand this issue. See Manlicon v. West, 12 Vet. App. 238 (1999); 38 C.F.R. § 19.29 (2007). Accordingly, the issue of entitlement to an effective date prior to October 23, 2003, for a grant of service connection for right ear hearing loss is remanded for the following action: Appropriate action, including the issuance of a statement of the case and notification of the veteran's appellate rights, on the issue of entitlement to an effective date prior to October 23, 2003, for the grant of service connection for right ear hearing loss, is necessary. 38 C.F.R. § 19.26 (2007). The veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal to the April 2007 rating decision granting an effective date of October 23, 2003, must be filed. 38 C.F.R. § 20.202 (2007). If the veteran perfects an appeal as to this issue, the case must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs