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