Citation Nr: 0813079 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 06-17 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left knee disorder 2. Entitlement to service connection for a left shoulder disorder 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a back disorder. 5. Entitlement to service connection for a right shoulder disorder. 6. Entitlement to service connection for headaches, claimed as an undiagnosed illness as a result of service in the Southwest Asia theater during the Persian Gulf War. 7. Entitlement to service connection for adjustment disorder with mixed anxiety and depressed mood, claimed as fatigue and memory loss due to an undiagnosed illness as a result of service in the Southwest Asia theater during the Persian Gulf War. 8. Entitlement to service connection for hearing loss, claimed as hearing due to an undiagnosed illness as a result of service in the Southwest Asia theater during the Persian Gulf War. ATTORNEY FOR THE BOARD A. Roth, Associate Counsel INTRODUCTION The veteran had active service from October 2001 to March 2002 and from February 2003 until June 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. In July 2005, the veteran requested review by a Decision Review Officer (DRO) of his claims on appeal. In an April 2006 statement of the case a DRO addressed his claim de novo as part of the appeal process. See 38 CFR § 3.2600 (2007). The Board accordingly considers the claim to have been properly adjudicated at the RO level, including for purposes of appellate review. Additionally, in an April 2005 communication, the veteran filed a claim for "hearing." It appears he was claiming service connection for both hearing loss and tinnitus when he filed his claim. While a claim for service connection for hearing loss has been adjudicated, and is addressed in this decision, it appears that his claim for tinnitus has not yet been addressed. Accordingly, the issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. Left shoulder, left knee, and right knee disorders are not currently shown. 2. A chronic back disorder was not shown in service and is unrelated to active duty. 3. A right shoulder disorder was treated in-service is related to his active duty service. 4. The veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 5. Competent evidence establishes that he has headache symptoms of undetermined etiology following such service. 6. The veteran has been diagnosed with adjustment disorder with mixed anxiety and depressed mood, which has been related to his active duty service. 7. The veteran has been diagnosed with bilateral hearing loss that has been related to in-service noise exposure. CONCLUSIONS OF LAW 1. A left shoulder disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116(a), 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. A left knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116(a), 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 3. A right knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116(a), 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 4. A back disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116(a), 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 5. A right shoulder disorder was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116(a), 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 6. Service connection is warranted for the veteran's headaches as a disability due to an undiagnosed illness. 38 U.S.C.A. §§ 1110, 1117, 1118, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.317 (2007). 7. Adjustment disorder with mixed anxiety and depressed mood was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 112, 113, 1154(a), 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.159, 3.303, 4.125(a) (2007). 8. Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS According to the law and regulations, service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology 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. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Knee and Left Shoulder In the present case, the preponderance of the evidence does not support a diagnosis of a left knee or left shoulder disorder. Rather, the Board finds that the medical evidence reflects that the veteran does not have any current diagnosis related to his left knee or left shoulder. In point of fact, there is no competent medical evidence of record, including service medical records, showing any complaints or treatment for a left knee or left shoulder disorder. Moreover, in an April 2005 VA examination, he denied having any problems with this left knee or left shoulder. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Right Knee Disorder Service medical records reveal that the veteran was treated for right knee pain from February 2003 to May 2004. Specifically, in July 2003 he reported a history of right knee pain, which had flared-up after he twisted his right knee. At that time, he was diagnosed with retropatellar pain syndrome, which is not a diagnosis of a chronic disease or injury. Additionally, results from an in-service X-ray dated in May 2004 revealed that his right knee was normal. After separation from active service, the veteran was treated for right knee pain as early as June 2004. In the June 2004 private treatment records, he reported that he began experiencing right knee pain 3 years previously and that he received a diagnosis of a right knee strain. An MRI taken in July 2004 revealed an irregular contour and truncation of the anterior horn lateral meniscus and some adjacent effusion; however, there was no evidence of bone edema or contusion. Additionally, the anterior and posterior cruciate ligaments were normal and intact as well as the medial and lateral collateral ligaments. Just a few months later, in September 2004, the veteran reported to his private physician that he was involved in an automobile accident and experiencing knee pain. He was diagnosed with a right leg contusion. Subsequently, in October 2004, the private physician noted that the veteran was experiencing right knee pain from a motor vehicle accident. More specifically, a private treatment record included a report from the veteran that he had been involved in a car accident in July 2004. Also in October 2004, the veteran underwent an arthroscopy of the right knee lateral release and was given a postoperative diagnosis of lateral tracking syndrome patella with chondromalacia of the patella. There were no meniscal tears and the anterior cruciate ligament was intact without attenuation. Later, in February 2005, the veteran was again seen by Dr. E who noted that he had full range of motion of the right knee, collateral and cruciates were intact, and there was no effusion. However, there was no crepitus underneath the patella and he had some tenderness on his lateral facet of patella. A preliminary assessment, not a diagnosis, of degenerative joint disease of the patellofemoral joint was given. The Board notes that a diagnosis of arthritis cannot be rendered for VA compensation purposes without objective medical evidence through an X-ray. See 38 C.F.R. § 4.71a, DC 5003. There is no indication in the record that such an assessment was based on X-ray evidence. Moreover, the veteran underwent a VA examination in April 2005 to evaluate his claimed right knee disorder. He reported to the examiner that he injured his knee in-service and that he continued to experience pain. He also claimed that he wore a brace. Physical examination revealed that he was nontender to palpation and no swelling was noted. There was mild popping on range of motion, but he was able to fully extend and flex on active and passive range of motion. His knee was also negative for the McMurray's and the anterior and posterior drawer tests. Collateral ligaments were also stable to varus and valgus stress. No muscular atrophy, spasms, or joint fusion was noted. Most notable, X-rays revealed a normal right knee. Specifically, there was no evidence of fracture, dislocation, or productive or destructive bone or joint disease. The examiner concluded that no current objective pathology was found regarding his subjective complaints of right knee pain. Moreover, an Addendum to the VA examination dated in June 2005, stated that the veteran reported no change since the April 2005 examination. Additionally, subsequent VA treatment records dated in 2005 and 2006 continue to document the veteran's complaints of right knee pain. One such record is a November 2005 treatment record that provides another assessment of osteoarthritis of the right knee. Again, this finding was not supported by objective medical evidence through an X-ray. See 38 C.F.R. § 4.71a, DC 5003. Additionally, this finding is inconsistent with the April 2005 VA examination results and a subsequent July 2006 MRI of the right knee that reflected normal findings. In this case, despite the veteran's continuous complaints of right knee pain, there is no objective finding of a current chronic underlying pathology. The Court has held that a symptom, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. Without a pathology to which the right knee pain can be attributed, there is no basis to find a chronic disability for which service connection may be granted. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). A previously stated, the Court has also held that, "[i]n the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Further, the Board acknowledges a private treatment record from Dr. D dated in June 2004 that states the veteran injured his knee 3 years ago while in the service when he stepped in a hole, which he later re-injured while running. However, such statement is merely a transcription of the veteran's reported history and not competent evidence of a nexus. Furthermore, such statements fail to render a diagnosis. In this regard, while the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Further, a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Therefore, the treatment records mentioned above hold little probative value of a current diagnosis or nexus of a right knee disorder and active duty service. For these same reasons, a November 2004 treatment record from Dr. E that notes the veteran's current right knee pain, weakness, and swelling and notes that he injured his right knee during basic training in 2001 and again in 2004 is also not probative. Additionally, VA treatment records dated in January and March 2005 merely transcribing the veteran's reported history are also not probative. In sum, the evidence of record fails to establish that the veteran has a current diagnosis of a chronic disability that was incurred in-service. Back Disorder The Board notes that the veteran has a current diagnosis of low back disorder. Specifically, a January 2006 VA examination rendered a diagnosis of low back strain. X-rays at that time revealed that the thoracic spine has an increase in curvature in the lower three levels of the thoracic spine. Additionally, private treatment records dated in 2004 indicated that the veteran had a back strain. Regarding the second element of a service connection claim, that of in-service incurrence, the veteran's service medical records indicate that he was treated on several occasions between May 2003 and July 2003 for a spinal strain. However, there was no further treatment in-service for low back pain. Thus, it appears to be an isolated incident that was treated without residuals. Moreover, post-service private treatment records do not reflect complaints of low back pain until his reported automobile accident in the summer of 2004. Significantly, in private treatment records dated in late 2004, the veteran indicated that he was experiencing low back pain, which he reported as being continuous since his motor vehicle accident in July 2004. Similarly, private treatment records from Dr. D indicate treatment for low back pain in October and December 2004, after his reported automobile accident. This evidence weighs against a finding that a back disorder had been present since active duty. In addition to the documented post service treatment records, the evidence also includes statements from the veteran asserting continuity of symptoms. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In adjudicating his claims, the Board must evaluate the veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). While the Board acknowledges that the veteran is competent to provide evidence of his own experiences, the fact that he did not complain of a back disorder until after this July 2004 motor vehicle accident and his statements made to treating physicians that he had experienced continuous low back pain since his motor vehicle accident in July 2004 weigh heavily against the claim he now makes that he has had problems ever since service. Therefore, continuity of symptomatology has not been shown. Next, service connection may be granted when a medical nexus is established between the claimed disorder and active duty service. In the present case, no medical examiner or treating physician has established or suggested a direct medical nexus between the veteran's diagnosed back disorder and active duty. The Board acknowledges VA treatment records dated in 2005 and 2006 that contain a reported history of low back pain since he injured his back while changing a tire during his service in Iraq. Additionally, private treatment records dated in December 2004 from Dr. D also note a similar history of low back pain as reported by the veteran. However, these notations are not opinions as to the nexus between his current back disorder and service, but merely a transcription of the veteran's reported history. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional). Moreover, in January 2006, the veteran underwent a VA examination to specifically address the etiology of his current lumbosacral strain. In doing so, the examiner obtained a reported history, conducted a physical examination, reviewed the claims file, and asked the veteran about the absence of medical attention for his lower back from July 2003 (his last in-service treatment) to the time of his motor vehicle accident in July 2004. Based on his review, the VA examiner concluded that the issue could not be resolved without resorting to mere speculation. Thus, the weight of the competent evidence does not relate the veteran's current back disorder to service. Right Shoulder Upon physical examination in April 2005, a VA examiner diagnosed the veteran with right shoulder bursitis after X- rays were taken of his shoulders. Therefore, a current diagnosis related to the right shoulder has been shown. Service medical records reflect that the veteran was treated on several occasions for pain in the right shoulder in late 2003 and again in May 2004. During those occasions he was diagnosed with right shoulder impingement and a right rotor cuff strain. Consistent with his service medical records, the veteran told the VA examiner that he injured his shoulder when he fell off a truck in-service. Next, the medical evidence reflects a nexus between the veteran's current right shoulder bursitis and active duty service. Specifically, after review of the claims file, service medical records, and the veteran's description of the in-service injury, the examiner provided a diagnosis of right shoulder bursitis. It can, therefore, be assumed that the examiner was aware of the veteran's injury in service and his current symptoms. As the veteran's right shoulder disorder has been related to an injury that incurred in service, the claim for service connection is granted. With respect to all the claims discussed above, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges the veteran's own belief that he has diagnoses of chronic disabilities that were incurred during active duty service. However, as stated previously, while he is competent to report symptoms because this requires only personal knowledge, he is not competent to offer opinions on medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. at 470. Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In sum, his statements are no competent evidence to establish service connection. Undiagnosed Illness Claims With respect to his remaining claims on appeal, the issues of service connection for headaches, a psychiatric disorder, and hearing loss, the veteran asserts that the presumptive provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 apply. In this regard, compensation may be paid to a Persian Gulf veteran who exhibits objective indications of chronic disability due to undiagnosed illnesses or combination of undiagnosed illnesses that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more, following such service. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Service connection may be granted when the evidence establishes: (1) that he or she is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. The Board notes that the statutory delimiting date is different than the regulatory date. To qualify for compensation under these provisions, "Persian Gulf veteran" is defined as "a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The "Southwest Asia theater of operations" includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.117(d)(1) and (2) (2006). Under 38 C.F.R. § 3.317(b), signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 C.F.R. § 3.317(b) (emphasis added). The claimant is a "Gulf War veteran" as defined by 38 C.F.R. § 3.317(d). His DD-214 reflects that he had service in the Southwest Asia theater of operations from April 2003 to May 2004. Headaches The record establishes that the veteran suffers from headaches that are of unknown etiology. Specifically, a VA examiner in an April 2005 report concluded that the veteran had headaches of an unknown etiology. He stated that he has constant dull headaches that occur every 2 to 3 days and are bitemporal, radiating to his occipital region lasting a full day. Upon physical examination, cranial nerves II-XII were grossly intact and there were no focal motor or sensory defects. While the evidence does not establish with any degree of certainty that there is a nexus between the veteran's headache symptoms and his service in Southwest Asia during the Persian Gulf War, it does establish that the etiology for his headaches is unknown. Giving the veteran the benefit of the doubt, it is not unreasonable to conclude that his headaches are due to an undiagnosed illness. As reasonable doubt must be resolved in the veteran's favor, service connection for an undiagnosed illness manifested by headaches is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Adjustment Disorder In May 2005, the veteran underwent a VA examination for mental disorders. At that time, he reported, among other things, irritability, depression, difficulty remembering things, trouble with distraction, and a bad attitude. The examiner attributed the veteran to be psychosocially impaired due to, in part, a lack of drive or motivation. After a through examination, the examiner rendered a diagnosis of adjustment disorder with mixed anxiety and depressive mood. In this case, the Board finds that the veteran's claims of fatigue and memory loss have been incorporated into the above psychiatric diagnosis. Accordingly, there is no basis for his claim that fatigue with memory loss is due to an undiagnosed illness occasioned by service in the Persian Gulf. In other words, the relevant medical evidence establishes that the veteran does not have undiagnosed illnesses manifested by fatigue with memory loss. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. As his claimed disorder has been diagnosed, 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not applicable. Nevertheless, in evaluating his claim on a direct basis, the Board notes that the veteran claims he has had problems with memory, attention and agitation since separation from service. In this May 2005 VA examination, he recalled experiencing depression every other week. The examiner noted that his depressive symptoms are mild in severity. Additionally, he reported anxiety symptoms such as insomnia, intrusive thoughts, hyper-vigilance, suspiciousness, and increased startle. He also reported having nightmares surrounding his experiences from the Iraq war. Specifically, the veteran recalled being shot at, having improvised explosive devises (IEDs) blow up on roads that he traveled on, being a main target of insurgency, and witnessing fellow soldiers being hit by IEDs, and children shot and killed. He reported that he lived each day in Iraq fearing death with the knowledge that each transport operation may be his last. Consistent with his statements, his DD-214 reflects a military occupation specialty as an motor transport operator. Given a review of the claims file, the examiner concluded that the highly stressful and traumatic conditions of being a motor vehicle operator in Iraq, the main target of insurgency, caused his development of psychiatric symptoms and caused a decrease in functioning from his pre-deployment level of functioning. Overall, he was found to be mildly psychiatrically impaired. In adjudicating a claim for service connection for adjustment disorder, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.304(f) (2007). As such, the Board finds that exposure to traumatic and stressful events in-service, as described by the veteran, is consistent with the circumstances of his service as a motor transport operator. Moreover, the VA examination supports a psychiatric disorder related to his experiences in Iraq. Resolving the benefit of the doubt in favor of the veteran, the Board finds that service connection for adjustment disorder with mixed anxiety and depressed mood is warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7 (2007). Hearing Loss In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See Hensley v. Brown, 5 Vet. App. 155 (1993). An June 2005 VA examination indicates that the veteran has bilateral hearing loss. In particular, it confirmed that he has hearing loss as defined by 38 C.F.R. § 3.385. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 35 35 LEFT 20 25 25 45 35 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. He was diagnosed with mild bilateral sensorineural hearing loss. Accordingly, the veteran's claimed hearing disorder has been attributed to known diagnoses and 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not applicable. Turning to service connection for hearing loss on a direct basis, service medical records do not indicate treatment for any hearing loss or other hearing disorder. However, the veteran claims that his hearing loss began in active duty service after being chronically exposed to high levels of noise. In this regard, the Board notes that his military occupation specialty was as a motor transport operator, which often involved operating large vehicles that are typically seen as generating significant noise. Based on his reported history and objective evidence of hearing loss less than one year from separation from active duty service, the VA examiner concluded that it would seem as likely as not that the hearing loss was the result of his active duty service. Such opinion was made while noting that sensorineural hearing loss was not stagnate but was characterized as a gradual progressive decrease in hearing sensitivity, which the veteran reported experiencing over the past year since he separated from service in June 2004. The Board emphasizes that when adjudicating a claim for service connection for hearing loss, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.304(f) (2007). As above, the Board finds that exposure to acoustic trauma in-service, as described by the veteran, is consistent with the circumstances of his service as a motor transport operator and sensorineural hearing loss consistent with his noise exposure in-service has been shown. Resolving the benefit of the doubt in favor of the veteran, the Board finds that service connection for hearing loss is warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7 (2007). The veteran has also asserted that receiving anthrax immunizations in-service attributed to his claims for headache, adjustment disorder, and hearing loss. Since these claims are being granted on other bases, there is no reason to reach the question of whether anthrax immunization was a contributing factor to the disorders. In summary, the Board finds that service connection for a left knee disorder, left shoulder disorder, right knee disorder, and back disorder have not been met. However, service connection is warranted for his service connection claims for a right shoulder disorder, headaches, adjustment disorder with mixed anxiety and depressed mood, and hearing loss. In reaching the above conclusions, the Board has considered the benefit-of-the-doubt doctrine when applicable. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103(a), 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the veteran in March and April 2005 that fully addressed all four notice elements and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in April 2006, the RO provided the veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the veteran's service medical records pertaining to his period of active duty from February 2003 to June 2004 have been obtained. However, there are outstanding service medical records from his period of service from October 2001 until March 2002. The claims file reflects the efforts taken by the RO to secure the release of those records. For example, there were multiple requests made to his National Guard unit to release said records. A July 2005 rating decision further details the RO's efforts to locate the missing service medical records from his first period of active duty and concludes that they are considered not available. In such circumstances, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)(the BVA has a heightened duty in a case where the service medical records are unavailable). Moreover, the Board finds that VA has done everything reasonably possible to assist the veteran in the development of his service connection claims. Under the circumstances of this case, additional efforts to assist him in obtaining these records 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 and that 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). Again, the Board notes that it is unfortunate that the veteran's service medical records are not available in their entirety. Nevertheless, post-service medical evidence was available for review. Such evidence, allowed the Board to thoroughly consider the veteran's claims for service connection and to provide a well-reasoned analysis as mandated by O'Hare. Accordingly, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records and service medical records. He submitted private treatment records, copies of his service medical records from his period of active service, and statements in support of his claims. In addition, he was afforded a VA medical examinations in April 2005, June 2005, and January 2006. Significantly, the veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a left knee disorder is denied. Service connection for a left shoulder disorder is denied. Service connection for a right knee disorder is denied. Service connection for a back disorder is denied. Service connection for a right shoulder is granted. Service connection for headaches is granted. Service connection for adjustment disorder with mixed anxiety and depressed mood is granted. Service connection for bilateral hearing loss is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs