Citation Nr: 0813446 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 03-02 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to an evaluation in excess of 10 percent for valvular heart disease prior to November 8, 2005. 4. Entitlement to an evaluation in excess of 30 percent for valvular heart disease since November 8, 2005. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Donnelly, Associate Counsel INTRODUCTION The veteran served on active duty with the United States Navy from November 1945 to October 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision by the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for bilateral hearing loss and denied an increased evaluation for valvular heart disease. The RO later granted an increased evaluation for heart disease which did not fully satisfy the issue on appeal; the veteran has stated he wishes to pursue additional appellate review. The veteran requested to appear before a Veterans Law Judge at the RO, but was unable to appear for a scheduled hearing in June 2007. The Travel Board hearing was rescheduled at the veteran's request for September 2007, but the veteran failed to report without explanation or a second attempt to reschedule. The issues of entitlement to increased evaluation for valvular heart disease prior to and after November 8, 2005, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no current right ear hearing loss disability. 2. Current left ear hearing loss was not first manifested during service or in the first year following separation from service, and the preponderance of the competent medical evidence of record is against a finding that any currently diagnosed left ear hearing loss disability is related to active service. CONCLUSIONS OF LAW 1. Service connection for a right ear hearing loss disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2007). 2. Service connection for a left ear hearing loss disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letters sent to the appellant in December 2001 and February 2003 that fully addressed all notice elements. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of multiple statements of the case and supplemental statements of the case after the notice was provided. Moreover, although notice of the assignment of an evaluation and effective date, pursuant to Dingess, supra, was not provided until March 2006 and was separated from all other notice of the elements of a service connection claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA additionally has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran 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. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records from VA Medical Center (VAMC) East Orange and associated clinics, and has associated the veteran's service medical records with the file. The veteran submitted private medical records from Dr. JAS and Dr. ARF, as well as Dr. JMR. The veteran was offered an opportunity to set forth his contentions during the hearing before a Veterans Law Judge, but failed to report for a rescheduled hearing at the RO. The appellant was afforded VA medical examinations in August and September 2001, June 2003, and July 2006. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). Sensorineural hearing loss, as an organic disease of the nervous system, is a chronic disease subject to presumptive service connection. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be a medical diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialize d education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Importantly, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As the bases for the Board decision differs for each ear, they are addressed separately. Right Ear Hearing Loss VA defines a hearing loss disability as auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent. 38 C.F.R. § 3.385. Here, the evidence of record does not demonstrate that the veteran has met the requirements of a right hearing loss disability for VA purposes at any time. Service medical records do not include audiometry results, but do show that hearing was considered normal at entry into service in November 1945. Hearing was "15/15" on the left and right, and both ears showed a normal physical appearance. During January 1946 treatment for rheumatic fever, doctors noted that the veteran's ears showed cerumen in the canals, but the drums were normal. In April 1947, his ears were normal bilaterally, with "auditory activity unimpaired grossly." The veteran's hearing showed no deficit on coin click, whispered voice, spoken voice, or watch testing during an August 1947 separation examination. VA treatment records show an audiological evaluation was conducted in May 2000 which showed normal hearing through the 4000 Hz frequency. The veteran was seen frequently for ear complaints; a right tympanic membrane perforation was noted in approximately September 2000; tubes had been inserted in the ears. The veteran complained of left ear hearing loss in February 2001; conductive hearing loss was diagnosed and related to ongoing sinus problems. No specific complaints of hearing problems are reflected in VA treatment records after that point, though rhinitis, controlled by medication, is repeatedly noted. An August 2001 VA audiometric examination revealed no puretone threshold in excess of 20 decibels on the right, and a speech recognition score of 100 percent. On examination of the ear physically, the examiner noted a normal right ear drum, and evidence of perforation and tube insertion on the left. The second examiner diagnosed bilateral sensorineural hearing loss based on audiometric findings. A private examination report from Dr. JMR dated in May 2002 indicates "bilateral symmetrical sensorineural hearing loss of moderate degree at high frequencies." Exact puretone thresholds are not provided, but a speech discrimination score of 88 was noted in the right ear. Tympanic membranes were normal in color and mobility. Minimal cerumen was seen. The ears were physically normal. A VA examination in February 2003, at which no audiometric testing was performed, shows a diagnosis of bilateral sensorineural hearing loss on clinical findings. Physical examination of the ears was normal, including the tympanic membranes. These findings were confirmed in a June 2003 examination for ear disease. Audiometric testing, however, reveals no puretone threshold in excess of 20 decibels at any frequency on the right, with speech recognition of 96 percent. The audiologist stated that hearing was within normal limits on the right. The Board finds that the great weight of the evidence demonstrates no right ear hearing loss. Repeated VA audiometric testing shows that hearing on the right does not meet the requirements of 38 C.F.R. § 3.385 in either puretone thresholds or speech recognition scores. Diagnosis of hearing loss based on clinical findings by a VA doctor are not relevant, by regulation. There is an indication of a hearing loss meeting the disability definition in private medical records in May 2002, but the private examiner did not interpret his raw data to indicate specific puretone thresholds, rendering it nonprobative. Moreover, the finding of symmetrical hearing loss and speech recognition scores are at odds with all other objective testing of record. The validity of the testing cannot be demonstrated, while the VA testing reflects specific findings on the veteran's cooperation with and understanding of the testing. In the absence of a current hearing loss disability, as defined by regulation, the claim must be denied. Left Ear Hearing Loss Service medical records, as is discussed above, reveal no complaints of or treatment for any hearing problems in service. There are no records showing such complaints until 2000, well past the applicable one year presumptive period. The medical evidence of record does not clearly establish the presence of a left ear hearing loss disability for VA purposes. VA audiometric testing in August 2001 does show a disability, with a puretone threshold of 45 decibels at 4000 Hz. June 2003 testing, however, does not meet the requirements of 38 C.F.R. § 3.385. The results are close, with puretone thresholds over 26 decibels in two frequencies and at 25 in another, and a speech recognition score of 94 percent, but do not meet the criteria. There are clinical findings and subjective complaints of left ear hearing loss, but as was discussed above, such evidence is not considered probative to establishing the presence of a hearing loss disability. Private audiometric results are not considered credible, as they show results in complete contradiction of all other testing of record, the reliability of which has been commented on by providers. The Board need not determine the presence or absence of a hearing loss disability, however. Assuming arguendo that there is a current disability, the overwhelming evidence of records shows no relationship to service. No private doctor has offered an opinion on the relationship of hearing loss complaints to service. Findings in VA treatment records attribute left ear conductive hearing loss to a nonservice connected sinus or rhinitis problem, but there is no offered rationale or explanation made in association with the observation. Two VA examiners have offered opinions on the etiology of any current left ear hearing loss in relation to service. One, a physician who saw the veteran in August 2001, February 2003, and June 2003, has opined that the veterans current hearing loss is related to service. In August 2001 and February 2003, no rationale or explanation is offered for this opinion; the examiner makes no reference to any in-service trauma, illness, or complaints of any hearing problems. The Board notes that the audiologist who performed a separate August 2001 examination did not render an opinion; that doctor did note subjective complaints of hearing difficulty since service. In June 2003, the VA physician examined the veteran for a third time. He again opined that the current hearing loss was at least partially related to service, based on a review of the file and a "history of exposure of [sic] noise during the service." However, the record reflect no such noise exposure. The veteran was hospitalized for 22 of his 24 months in service due to rheumatic fever. The record does not show he was involved in any activity involving noise exposure, and service medical records are completely silent regarding any hearing related treatment, complaints, or problems. Most importantly, the veteran has no made any allegation of in-service noise exposure. The physician does not show any such allegation in the history he took from the veteran, and the claims file does not contain any such allegation. The repeated opinion of the VA physician is based on a completely inaccurate history, and therefore cannot be considered probative on the matter. The VA audiologist who examined the veteran in June 2003, however, did take an detailed history from the veteran and offered an opinion based on facts consistent with the record. The veteran reported a familial history of congenital hearing loss and past chronic ear infections. He stated that he had no occupational noise exposure as a salesman, but did have recreational noise exposure as a member of a band. The veteran also reported his in-service rheumatic fever, and related his current hearing complaints to that infection. The veteran specifically denied any noise exposure in service. He did state that he had hearing problems while on active duty and reported such to the hospital staff. The examiner noted that service medical records showed no in- service complaints and included comments that hearing was unimpaired while the veteran was treated for rheumatic fever. The audiologist also noted that no hearing complaints were shown in the record until February 2000, which contradicted the veteran's report of longstanding problems since service. Finally, the examiner noted that conductive hearing loss at lower frequencies was consistent with documented post service chronic infections, and the remaining hearing loss was consistent with recreational noise exposure, and aging, and not with in-service noise exposure. The Board finds that the June 2003 audiologist's opinion is well reasoned and persuasive. He based his opinion on a complete picture of the veteran's current and historic complaints. The weight of the evidence is, therefore, against the veteran's claim. There is no relationship between current left ear hearing loss, if any, and service. ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is denied. REMAND The veteran alleges that an evaluation in excess of 10 percent is warranted for valvular heart disease prior to November 8, 2005; he also alleges entitlement to an evaluation in excess of 30 percent for valvular heart disease since November 8, 2005. As was discussed above, under the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The United States Court of Appeals for Veterans Claims (Court) has interpreted VA's duties to notify and assist in the context of claims for increased evaluation, as here. In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court found that 38 C.F.R. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, supra. Here, the veteran's service connected heart disability is evaluated under Diagnostic Code 7000, which includes specific laboratory and test results as criteria for assignment of a higher evaluation. Descriptions of the impact on the veteran's daily activities and general allegations of a worsening of symptoms would no be sufficient to warrant assignment of an increased evaluation. Unfortunately, VA has not provided the veteran with adequate notice of the applicable criteria. Additional development is therefore required. Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided the notice required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), as well as Court precedent, to include Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The notice to the veteran must include the rating criteria for Diagnostic Code 7000, for valvular heart disease (including rheumatic heart disease). 2. The RO should obtain updated VA treatment records from VAMC East Orange and any associated clinics, from September 2005 to the present. 3. Thereafter, the RO should review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO should then readjudicate the claims on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ K. J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs