Citation Nr: 0813334	
Decision Date: 04/23/08    Archive Date: 05/01/08

DOCKET NO.  06-06 998A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for hearing loss 
disability, left ear.

2.  Entitlement to service connection for pes planus.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

E. I. Velez, Associate Counsel





INTRODUCTION

The veteran had active service from July 1962 to January 1966 
and from September 1968 to September 1971.

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from decisions of August 2005 and February 
2006 by the Department of Veterans Affairs (VA) Regional 
Office (RO) in Waco, Texas.  


FINDINGS OF FACT

1.  The veteran does not have a left ear hearing loss 
disability.  

2.  Pes planus was noted on the veteran's first service 
enlistment examination.

3.  Pes planus was not noted upon entrance in September 1968.

4.  There is clear and unmistakable evidence that the 
veteran's pes planus pre-existed service and did not increase 
in severity beyond is natural progression during the 
veteran's active service.


CONCLUSIONS OF LAW

1.  Hearing loss disability of the left ear was not incurred 
in or aggravated by service, nor can an organic disease of 
the nervous system be presumed to have been incurred therein.  
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007).

2.  Bilateral pes planus, which pre-existed the veteran's 
first period of active service, was not aggravated therein.  
38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. §§ 
3.304, 3.306 (2007).

3.  Bilateral pes planus clearly and unmistakably pre-existed 
the second period of service and was not aggravated therein.  
The presumption of soundness at entry is rebutted.  38 
U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. §§ 3.304, 
3.306 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), 
and the pertinent implementing regulation, codified at 38 
C.F.R. § 3.159 (2007), provides that VA will assist a 
claimant in obtaining evidence necessary to substantiate a 
claim but is not required to provide assistance to a claimant 
if there is no reasonable possibility that such assistance 
would aid in substantiating the claim.  To be consistent with 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) a VCAA notice 
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 
supports the claim, or something to the effect that the 
claimant should "submit any additional evidence that 
supports your claim."  This "fourth element" of the notice 
requirement comes from the language of 38 C.F.R. § 
3.159(b)(1). 

The Board notes that in Mayfield v. Nicholson, 444 F. 3d. 
1329 (2006), the Federal Circuit Court held that the VCAA 
notice must be provided prior to the initial decision or 
prior to readjudication, and such duty to notify cannot be 
satisfied by post-decisional communications.  The notice in 
this case predated the rating decision.

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) the 
Court held that the VCAA notice requirements of 38 U.S.C.A. 
§ 5103A and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service connection claim, including the degree of 
disability and the effective date of an award.  The timing 
requirement enunciated in Pelegrini v. Principi, 18 Vet. App. 
112 (2004), applies equally to all five elements of a service 
connection claim.  Id.  

The Board finds that the VA's duties under the VCAA and the 
implementing regulations have been fulfilled with respect to 
the claim for service connection for hearing loss disability, 
left ear, and pes planus.  In a VCAA letter of April 2005 the 
appellant was provided adequate notice as to the evidence 
needed to substantiate his claim.  He was informed of the 
evidence necessary to establish entitlement, what evidence 
was to be provided by the appellant and what evidence the VA 
would attempt to obtain on his behalf; it also in essence 
told him to provide relevant information which would include 
that in his possession.  See generally Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  

In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the 
United States Court of Appeals for the Federal Circuit held 
that any error by VA in providing the notice required by 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed 
prejudicial, and that once an error is identified as to any 
of the four notice elements the burden shifts to VA to 
demonstrate that the error was not prejudicial to the 
appellant.  The Federal Circuit stated that requiring an 
appellant to demonstrate prejudice as a result of any notice 
error is inconsistent with the purposes of both the VCAA and 
VA's uniquely pro-claimant benefits system.  

Instead, the Federal Circuit held in Sanders that all VCAA 
notice errors are presumed prejudicial and require reversal 
unless VA can show that the error did not affect the 
essential fairness of the adjudication.  To do this, VA must 
show that the purpose of the notice was not frustrated, such 
as by demonstrating:  (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.  Although not specifically discussed by 
the court, some other possible circumstances that could 
demonstrate that VA error did not prejudice the claimant 
include where the claimant has stated that he or she has no 
further evidence to submit, or where the record reflects that 
VA has obtained all relevant evidence.

In this case, the Board, based on a review of the appellant's 
statements in this case, finds that the claimant has 
demonstrated an understanding of the evidentiary 
requirements, rebutting any presumption of prejudice.  As 
such, even if there were some type of problem with the notice 
provided by the RO, the Board finds that there have been no 
notice errors that have resulted in any prejudice to the 
appellant or affected the essential fairness of the 
adjudication.  Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 
2007).

With regard to the requirement of notice with respect to the 
degree of disability and the effective date of the award as 
required by Dingess, supra, notice was not provided until 
March 2006.  However, the Board finds that the appellant's 
claim is being denied, therefore there can be no possibility 
of prejudice to the appellant even if the appellant was not 
informed of the same in a timely manner.  

The Board notes that the veteran has not been afforded a VA 
examination with regards to the pes planus claim.  In 
McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held 
that VA must provide a medical examination when there is: (1) 
competent evidence of a current disability or persistent 
recurrent symptoms of a disability; (2) evidence establishing 
that an event, injury, or disease occurred in service or 
establishing certain diseases manifesting during an 
applicable presumptive period for which the claimant 
qualifies, and (3) an indication that the disability or 
persistent or recurrent symptoms of a disability may be 
associated with the veteran's service or with another 
service-connected disability, but (4) insufficient competent 
medical evidence on file for the Secretary to make a decision 
on the claim.  In this case, there is no evidence of 
complaints or treatment pes planus while in service, no 
evidence of an indication of a nexus to service, and normal 
findings at entrance and separation from the second period of 
service.  Therefore, the evidence on file is adequate to male 
a decision and further examination is not needed.  

VA must also make reasonable efforts to assist the claimant 
in obtaining evidence necessary to substantiate the claim for 
the benefit sought, unless no reasonable possibility exists 
that such assistance would aid in substantiating the claim.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007).  In connection 
with the current appeal service medical records have been 
obtained.  The veteran was afforded a VA audiological 
examination.  Furthermore, he was given the opportunity to 
testify at a Travel Board hearing and he withdrew his 
request.  Therefore, the Board finds that the VA has 
satisfied its duties to notify and to assist the claimant in 
this case.  No further assistance to the appellant with the 
development of evidence is required.  38 U.S.C.A. § 
5103A(a)(2); 38 C.F.R. § 3.159(d).


Legal Criteria and Analysis

Compensation may be awarded for disability resulting from 
disease or injury incurred in or aggravated by service.  38 
U.S.C.A. §§ 1110, 1131 (West 2002). Service connection 
basically means that the facts, shown by evidence, establish 
that a particular injury or disease resulting in disability 
was incurred coincident with service in the Armed Forces, or 
if preexisting such service, was aggravated therein. 38 
C.F.R. § 3.303 (2007).

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 (2007).

Service connection may be granted for any disease diagnosed 
after discharge, when all of the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d) (2007).  However, 
"[a] determination of service connection requires a finding 
of the existence of a current disability and a determination 
of a relationship between that disability and an injury or 
disease incurred in service."  Watson v. Brown, 4 Vet. App. 
309, 314 (1993).

A service connection claim must be accompanied by evidence 
which establishes that the claimant currently has the claimed 
disability.  See Brammer v. Derwinski, 3 Vet. App. 223. 225 
(1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).

A veteran will be considered to have been in sound condition 
when examined, accepted, and enrolled for active service, 
except as to defects, infirmities, or disorders noted at 
entrance into service, or where clear and unmistakable 
(obvious or manifest) evidence demonstrates that an injury or 
disease existed prior thereto and was not aggravated by such 
service.  Only such conditions as are recorded in examination 
reports are to be considered as noted.  38 U.S.C.A. § 1111; 
38 C.F.R. § 3.304(b).

A pre-existing injury or disease will be considered to have 
been aggravated by active military, naval or air service, 
where there is an increase in disability during such service, 
unless there is a specific finding that the increase in 
disability is due to the natural progress of the disease.  38 
U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  Temporary or 
intermittent flare-ups during service of a pre-existing 
injury or disease are not sufficient to be considered 
aggravation in service unless the underlying disability, as 
contrasted to the symptoms of that disability, has worsened.  
See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. 
Derwinski, 1 Vet. App. 292, 297 (1991).  Clear and 
unmistakable evidence (obvious and manifest) is required to 
rebut the presumption of aggravation where the pre-service 
disability underwent an increase in severity during service.  
38 C.F.R. § 3.306(b).  

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the appellant prevailing in either 
event, or whether a preponderance of the evidence is against 
a claim, in which case, the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

Initially the Board notes that the veteran has not alleged 
that his disabilities are a result of combat.  Therefore, the 
provisions of 38 U.S.C.A. § 1154(b) are not for application.  

Hearing Loss Disability

The veteran had two periods of active duty.  A separation 
physical of January 1966 for his first period of active duty 
noted puretone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
LEFT
0
5
5
10
10

The ears were normal.  

A separation physical of September 1968 for his second period 
of active duty noted puretone thresholds, in decibels, were 
as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
10
10
5
10
15

The ears were normal.  

In a VA audiological exam of November 2005 the puretone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
15
20
20
25
30

Speech recognition using Maryland CNC was 100 percent.  The 
examiner noted that the veteran reported noise exposure in 
service while working around various types of aircrafts.  

As noted above, impaired hearing will be considered to be a 
disability for purposes of the VA, 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 (2007).  The VA 
audiological examination of November 2005 found that while 
the veteran had hearing loss in the left ear, it was not to 
the level to be considered a disability under VA standards.  
Without a finding of a current disability, service connection 
cannot be granted.  The preponderance of the evidence is 
against the claim and there is no doubt to be resolved.  

Pes Planus

The veteran's June 1962 enlistment examination report shows a 
notation of first degree pes planus, asymptomatic.  
Subsequent service medical records are silent for any 
complaints, treatment, and diagnosis pertaining to the 
veteran's feet.  A separation examination of January 1966 
noted pes planus, mild, asymptomatic.  The veteran's 
enlistment examination of September 1968 for his second 
period of active duty noted the veteran's feet were within 
normal limits.  A separation examination of September 1971 
noted the feet were within normal limits.

The veteran has asserted in a VA Form 9 of March 2006 that 
his pes planus developed while in service and continues to 
exist today.  Having reviewed the record, the Board has 
concluded that the preponderance of the evidence weighs 
against a grant of service connection for bilateral pes 
planus.  Pes planus was noted on the first enlistment 
examination report of June 1962 as an abnormality of the 
feet.  Thus, the record includes competent evidence which 
clearly and unmistakably shows that pes planus pre-existed 
the period of active service, and the presumption of 
soundness is not applicable with regard to the first period 
of service.  38 C.F.R. § 3.304 (2007); see also Bagby v. 
Derwinski, 1 Vet.App. 225 (1991).  The Board notes that the 
entrance examination for the veteran's second period of 
active duty did not note any abnormalities of the feet.  
However, any presumption of soundness which may be argued 
exists in regards to the second period of active duty is 
rebutted by the enlistment examination of June 1962 which 
noted pes planus and which serves as clear and unmistakable 
evidence that the condition pre-existed service.  

As pes planus has been shown to have existed prior to the 
veteran's induction into active duty, the Board must next 
address whether this disability increased in severity or was 
aggravated during the period of active service.  As noted, a 
pre-existing injury or disease will be considered to have 
been aggravated by active military, naval, or air service, 
where there is an increase in disability during such service, 
unless there is a specific finding that the increase in 
disability is due to the natural progress of the disease.  38 
U.S.C. § 1153; see also 38 C.F.R. § 3.306(a) (2007).

The Board has carefully reviewed the evidence of record and 
it is found that there is no basis to conclude that the pre-
existing bilateral pes planus was aggravated by the first 
period of active service.

The threshold questions are: 1) was there an increase in the 
veteran's pre-existing pes planus when he served on military 
duty, and 2) if an increase is shown, was it due to the 
natural progression of the disease.  Based on the evidence 
below, the Board finds that an increase in the veteran's pre-
existing pes planus has not been shown.

First degree pes planus, asymptomatic, was noted at entry 
into his first period of active duty, it was also noted on 
separation as mild pes planus, asymptomatic.  Nothing in such 
evidence suggests a change in disability.  Moreover, the 
Board notes that the veteran's feet were noted to be normal 
at entrance and separation of the second period of active 
duty.  This evidence is clear and unmistakable that the 
veteran had no increase of his pre-existing pes planus while 
on either period of active duty.  The fact that it was not 
noted at entrance or separation during the second period of 
service is evidence that the condition did not progress 
during either period.  

Next, there is a total lack of post-service treatment for pes 
planus.  While the veteran has asserted that he continues to 
have pes planus, there is no record of any change in 
pathology.  The Board finds that the lack of evidence of 
post-service complaints or treatment for pes planus is 
confirmatory proof that there was no in-service increase in 
the veteran's pre-service pes planus (as established by the 
normal findings at entrance and separation from the second 
period of duty).

In sum, the evidence shows that the veteran was noted to have 
pes planus at the time of his first entry into active duty, 
but had no complaints of foot problems while on active duty.  
The service medical records are silent as to an increase in 
severity during each period of service and the normal 
findings at entrance and separation from the second period of 
service clearly and unmistakably prove that there was no 
increase in severity or aggravation during either period of 
service.  See Wagner v. Principi, 370 F.3d 1089 (2004).  
Therefore, there is clear and unmistakable evidence that 
there was no aggravation of the veteran's pes planus during 
service.


ORDER

Service connection for hearing loss disability, left ear, is 
denied.

Service connection for pes planus is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs