Citation Nr: 0813638 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 01-00 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to an increased rating for a right knee disorder. 4. Entitlement to an increased rating for right ear hearing loss. 5. Entitlement to an increased rating for postoperative residuals of a nasal injury. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Christopher McEntee, Associate Counsel INTRODUCTION The veteran had active service from February 1983 to January 1987, and from December 1988 to January 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2000 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. These matters were previously before the Board in October 2003. At that time they were remanded to the RO via the Appeals Management Center (AMC) for additional development. That development has been completed to the extent practicable. Cf. Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). There matters have been returned to the Board for additional appellate review. The issues regarding claims for increased rating of the right knee, right ear hearing loss and postoperative residuals of a nasal surgery 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. The Board regrets the further delay of the resolution of these matters but for the reasons set out below, the Board finds that an additional remand at this time is required. FINDINGS OF FACT 1. The competent and probative medical evidence is against a finding that the veteran's right shoulder disorder is related to service. 2. The competent medical evidence does not include evidence of left ear hearing loss . CONCLUSIONS OF LAW 1. A right shoulder disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Left ear hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. §§ 3.303; 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims service connection for a right shoulder disorder. In the interest of clarity, the Board will initially discuss whether this claim has been properly developed for appellate purposes. The Board will then address the merits of the claim, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the veteran has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA satisfied VCAA notification requirements here in letters from VA dated in March 2001, March 2004, and June 2006. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. VA informed the veteran of the elements that comprise his claim, and of the evidence needed to substantiate his claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA requested from the veteran relevant evidence, or information regarding evidence which VA should obtain (the Board also finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claim). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (veterans should be notified to submit any pertinent evidence in their possession). And VA advised the veteran of the respective duties of the VA and of the veteran in obtaining evidence needed to substantiate his claim. The Board notes a deficiency with VCAA notification. initial adjudication of this claim in August 2000, prior to the enactment of the VCAA. As such, providing the veteran with VCAA notice prior to the initial adjudication was a legal and factual impossibility. However, VA did not fully notify the veteran until June 2006. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision); see also Dingess/Hartman, supra. Nevertheless, the Board finds that any presumed prejudice incurred by the veteran is rebutted by the record, and that proceeding with a final decision is appropriate here. See Sanders v. Nicholson, 487 F.3d 881 (2007). See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. In December 2007, following full and proper notice here, VA readjudicated the veteran's claim in a Supplemental Statement of the Case. See Mayfield, supra. As such, the veteran has not been negatively affected by the untimely notice in this matter. In sum, the Board finds that VA satisfied VCAA notification requirements here. With regard to VA's duty to assist, the VCAA requires that VA make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate a claim for benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. The RO obtained medical records relevant to the appeal. VA afforded the veteran the opportunity to appear before hearings to voice his contentions. And in October 2004, the veteran underwent a VA compensation evaluation for his claim. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the veteran in this appeal. Therefore, the veteran has not been prejudiced as a result of the Board deciding his claim here. II. The Merits of the Claim for Service Connection Right Shoulder Condition The veteran claims that in-service right shoulder complaints caused a current right shoulder disability that should be service connected. For the reasons set forth below, the Board finds that the competent and probative medical evidence of record is against the veteran's claim. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131 (2002); 38 C.F.R. § 3.303(a) (2007). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154 (2002); 38 C.F.R. § 3.303(a) (2007). In general, to establish service connection for a disability, a claimant must submit the following: First, medical evidence of a current disability. Second, medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. And third, 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). In this matter, the medical evidence supports the veteran's claim of a current right shoulder disorder. A July 2000 VA x-ray indicated that the veteran's right shoulder was normal. And an October 2004 VA compensation examination report included the examiner's medical conclusion that the veteran had no current right shoulder disability. This same report indicated, however, that the veteran had a chronic right shoulder sprain. And a July 2000 VA compensation examination report of record states that the veteran "probably" had tendonitis in his right shoulder. As such, the first element of Pond is established here. The record supports the second element of Pond as well. A letter dated in June 1998, from a private physician, notes treatment for right shoulder pain. And a September 1999 report of medical assessment indicates treatment for a right shoulder disorder. Nevertheless, the Board finds service connection unwarranted here - the third element of Pond is not established by the medical evidence of record. In fact, the only medical evidence of record addressing the issue of nexus between service and current disorder is found in the October 2004 VA report. That examiner found it unlikely that the veteran's shoulder sprain related to the injury during active service. As the third element of Pond is not established here, the Board finds service connection unwarranted for a right shoulder disorder. There is no competent medical evidence to the contrary. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has closely reviewed and considered the veteran's statements in this matter. While his statements may be viewed as evidence, the Board must also note that laypersons without medical expertise or training are not competent to offer medical evidence on matters involving diagnosis and etiology. Therefore, the statements alone are insufficient to prove the veteran's claim. Ultimately, a lay statement, however sincerely communicated, cannot form a factual basis for granting a claim requiring medical determinations. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Accordingly, as the criteria for entitlement to service connection have not been met. The benefit sought on appeal is denied. Left ear hearing loss In assessing the veteran's service connection claim for hearing loss, the Board must first determine whether the veteran has a hearing disability under VA regulations. Hearing disabilities are determined for VA purposes using criteria provided under 38 C.F.R. § 3.385 (2007). Thereunder, a hearing disability will be determined where any of the following threshold measures has been found: where the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory threshold for at least three of the frequencies is 26 decibels or greater; or where speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Board acknowledges that the veteran has asserted that he underwent a VA hearing evaluation in March 2000. Pursuant to the instructions in the Board's October 2003 remand, VA requested those test results. However, the VAMC has responded that no such records exist and that earliest testing data available is the July 2000 VA compensation and pension examination. At that time, the hearing test did not show auditory thresholds of 26 decibels or above at 500, 1000, 2000, 3000 or 4000 Hertz. Speech discrimination results were 96 percent. 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). There is no indication anywhere in the record that any other more current hearing data exists. Moreover, the veteran has had over eight years to provide such evidence. He has not done so. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, as the competent medical evidence does not show a current disability, entitlement to service connection of left ear hearing loss cannot be granted. The benefit sought on appeal is denied. ORDER Service connection for a right shoulder disorder is denied. REMAND The veteran has not undergone VA compensation medical examination for his service-connected right knee, right ear, and nasal disorders since 2004. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) Moreover, the Board finds additional VCAA notification necessary for these claims for increased rating. During the course of the veteran's appeal, in January 2008, the U.S. Court of Appeal for Veterans Claims (Court) issued its decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that decision, the Court addressed VA claims for increased compensation. In relevant part, the Court stated in Vazquez-Flores that, if the diagnostic code (DC) 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 of 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. Id. As indicated earlier, the RO has submitted to the veteran three VCAA letters. But none of these letters addresses the disability criteria in the diagnostic codes pertaining to the disorders at issue here (i.e., DCs 5003, 5010, 5256-5263, 6100, 6502, 6513). Accordingly, the case is REMANDED for the following action: 1. The RO should submit to the veteran a new VCAA letter addressing the veteran's increased rating claims for knee, nasal, and hearing loss disorders. See Vazquez-Flores, supra. 2. In the letter, the RO should advise the veteran that he may submit evidence showing any effects of worsening, or increase in severity, upon his employment and daily life. 3. In the letter, the RO should provide specific notification of the criteria in the DCs at issue here - DCs 5003, 5010, 5256-5263, 6100, 6502, and 6513. 4. The veteran should then be scheduled for VA examinations with appropriate specialists in order to determine the nature and severity of his right knee, nasal, and hearing loss disorders. The claims file must be made available to and reviewed by the examiners in conjunction with the examinations, and the examination reports should reflect that such reviews were made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The veteran's complaints should be recorded in full. 5. The RO should then readjudicate the issues on appeal. If a determination remains unfavorable to the veteran, the RO should issue a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. M. Morgan Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs