Citation Nr: 0813721 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-23 867 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to service connection for a bilateral ankle disability. 4. Entitlement to service connection for defective hearing. 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for residuals of an ear infection. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from February 1984 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision by the RO which denied service connection for the disabilities now at issue on appeal. The issues of service connection for low back and left foot disabilities 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. All evidence necessary for adjudication of the issues addressed in this decision have been obtained by VA. 2. The veteran is not shown to have a right foot or bilateral ankle disability, defective hearing, tinnitus or residuals of a claimed ear infection at present which is related to service. CONCLUSIONS OF LAW 1. The veteran does not have a right foot disability due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & West 2006); 38 C.F.R. §§ 3.159, 3.303 (2007). 2. The veteran does not have a bilateral ankle disability due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & West 2006); 38 C.F.R. §§ 3.159, 3.303 (2007). 3. The veteran does not have a defective hearing due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & West 2006); 38 C.F.R. §§ 3.159, 3.303 (2007). 4. The veteran does not have a tinnitus due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & West 2006); 38 C.F.R. §§ 3.159, 3.303 (2007). 5. The veteran does not have residuals of an ear infection due to disease or injury which were incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & West 2006); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the veteran's claims, a letter dated in January 2004, fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The veteran was notified of the evidence that was needed to substantiate his claims; what information and evidence that VA will seek to provide and what information and evidence the veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was ultimately his responsibility to give VA any evidence pertaining to his claims, including any evidence in his possession. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The veteran was notified of his responsibility to submit evidence which showed that he had a disability at present which was related to service; of what evidence was necessary to establish service connection, and why the current evidence was insufficient to award the benefits sought. The veteran's service medical records and numerous private medical reports have been obtained and associated with the claims file. The veteran was also afforded an opportunity to testify at a personal hearing, but declined. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) [hereinafter Mayfield III]. Since the Board has concluded that the preponderance of the evidence is against the claims of service connection for right foot and bilateral ankle disabilities, defective hearing, tinnitus, and residuals of a claimed ear infection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman, 19 Vet. App. 473. The Board thus concludes that any deficiency in the notice to the veteran or the timing of any notice is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that even though the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claim, and the error was harmless). Additionally, there has been no prejudice to the veteran in the essential fairness of the adjudication. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed Cir. 2006). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Concerning the issues to be decided herein, the Board concludes an examination is not needed because there is no evidence of a current disability or persuasive evidence of in-service disease or injury and an indication that the current condition is related to service. Service Connection - In General Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and sensorineural hearing loss is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides: 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). Factual Background & Analysis The veteran has made no specific contentions regarding any of the issues currently on appeal. Concerning his claim for ear aches, hearing loss, and tinnitus, the veteran indicated on his application for VA compensation benefits in January 2004, that his hearing loss and tinnitus began in February 2002, and he denied any history of medical treatment for his ears or any hearing problems. As to the remaining issues, the veteran indicated only that he was treated for bilateral foot and ankle problems during service. The service medical records showed no complaints, treatment, abnormalities, or diagnosis referable to any injury or problems with the veteran's right foot, left ankle, ears, or hearing. When seen for cold symptoms in December 1984, and October 1989, the veteran's ears were clear. The veteran made no mention of any hearing problems or tinnitus on any of the hearing examinations conducted in service. Audiological findings at the time of his entrance examination in January 1984 were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 0 10 LEFT 5 10 5 5 5 October 1986 Audiogram: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 0 10 LEFT 5 10 10 0 10 July 1987 Audiogram: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 0 0 LEFT 10 10 5 5 5 November 1988 Audiogram: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 0 LEFT 5 5 5 5 0 December 1989 Audiogram: HERTZ 500 1000 2000 3000 4000 RIGHT 25 5 5 5 0 LEFT 5 5 5 5 0 The service medical records showed that the veteran was treated for right ankle pain on one occasion in October 1987. There was slight lateral malleolus edema without ecchymosis and slight tenderness to palpation of the ankle joint. X-ray studies showed no evidence of fracture or other significant bone or soft tissue abnormalities. The impression was Grade I/II strain. The veteran was placed on light duty for 7 days and told to return as needed. The service medical records showed no further complaints, treatment, or pertinent abnormalities during service. Private treatment records, received in April and July 2005, showed that the veteran was seen for various maladies on numerous occasions from March 1994 to August 2003. Progress notes beginning in March 1994, showed that the veteran was seen for increasing bilateral foot pain in his heels and metatarsal heads on weight bearing. X-ray studies at that time showed normal feet. The assessment included foot pain and pes planus, bilaterally. The private medical records showed no complaints, treatment, abnormalities, or diagnosis referable to any bilateral ankle or ear problems, hearing loss, or tinnitus. While the veteran believes that he has bilateral ankle and left foot disabilities, hearing loss, tinnitus, and residuals of an ear infection at present which are related to service, he has not presented any competent medical evidence to support that assertion. While the veteran is competent to relate that he experienced symptoms in service, he is not a medical professional competent to offer an opinion as to the nature or etiology of any current claimed disability. Savage, 10 Vet. App. at 495; see Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In this case, the service medical record showed what appears to be an acute right ankle sprain in 1987, which was treated conservatively with Motrin and light duty for one week. The evidentiary record indicates that the ankle injury resolved without residual disability, as there were no further complaints, treatment, or abnormalities referable to the right ankle during service. The service medical records showed that the veteran participated in vigorous physical actives during his more than 31/2 years of remaining service subsequent to the right ankle sprain, including football, softball, and weight lifting without a single complaint of any right ankle problems. Moreover, the veteran has not provided any competent evidence of a current right ankle disability. The service medical records fail to show any injury or abnormalities related to the veteran's right foot, left ankle, ear infections, or any hearing problems or tinnitus in service. Furthermore, the veteran has not presented any evidence of a current bilateral ankle disability, ear disorder, hearing loss, or tinnitus. In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court held that "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability." Given the lack of competent medical evidence showing that the veteran has a bilateral ankle disability, an ear disorder, defective hearing, or tinnitus at present, there can be no valid claim. Brammer, 3 Vet. App. at 223 (1992). Accordingly, the appeal is denied. Similarly, there is no evidence of a right foot injury in service or any competent evidence of a medical nexus between the veteran's current right foot problems and military service. Accordingly, service connection for a right foot disability is denied. ORDER Service connection for a right foot disability is denied. Service connection for a bilateral ankle disability is denied. Service connection for defective hearing is denied. Service connection for tinnitus is denied. Service connection for residuals of an ear infection is denied. REMAND Concerning the remaining issues of service connection for low back and left foot disabilities, the Board finds that additional development must be accomplished prior to further consideration of the veteran's appeal. The service medical records showed that the veteran reported a history of recurring low back pain since a football injury in the ninth grade at the time of his service enlistment examination in January 1984. The examiner noted mild lumbar lordosis, and a subsequent x-ray study of the lumbar spine was within normal limits. The service medical records showed that he was seen for low back pain on two occasions during service. In February 1984, the veteran denied any recent injury or recurrent trauma. Other than mild diffuse tenderness, he had good range of motion, heel toe walking was normal, and x-ray studies were negative. The impression was musculoskeletal low back pain. The veteran also complained of low back pain after physical training in June 1989. No specific findings or abnormalities were noted. The impression was mechanical low back pain. The service medical records showed that the veteran played football, softball, and lifted weights throughout his military service, and that he was not seen for any low back problems subsequent to June 1989. The service medical records also showed that the veteran was seen for left foot pain of one day duration in February 1991. The veteran denied any history of trauma. The assessment was plantar fasciitis. Post-service private medical records showed that the veteran was first treated for bilateral foot pain in his heels and metatarsals beginning in March 1994, and for low back pain beginning in May 1995. X-ray studies showed normal feet and lumbosacral spine. The diagnoses included bilateral pes planus and back strain. Inasmuch as the Board is not competent to render a medical opinion regarding the nature and etiology of the veteran's current low back and left foot disabilities, a VA examination must be undertaken. In light of the discussion above, and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the RO for the following action: 1. The AMC should take appropriate steps to contact the veteran and obtain the names and addresses of all health care providers who treated him for any low back or left foot problems since his discharge from service. After securing the necessary release, the AMC should attempt to obtain all records not already associated with the claims file. If any records identified by the veteran cannot be obtained, he should be so informed and it should be documented in the claims folder. 2. The veteran should be afforded a VA orthopedic examination to determine the nature and etiology of any identified low back and left foot disability. The claims folder and a copy of this remand must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated tests and studies should be accomplished. The examiner should review the entire record, with particular attention to the status of the low back disability prior to, during, and subsequent to service, and provide an opinion as to the following questions: I. Is it at least as likely as not that the veteran had a low back disability that preexisted military service? II. If so, based on a review of the records, is it at least as likely as not that any preexisting low back disability underwent an increase in the underlying pathology during service? III. If there was an increase of a low back disability during service, is it at least as likely as not that any increase was due to the natural progress of the disease? IV. If the examiner determines that a low back disability did not preexist service, is it at least as likely as not that any current low back disability was incurred in active service? V. Is it at least as likely as not that any current left foot disability had its onset in service? If the examiner is unable to answer the above inquiry, this should be so indicated and an explanation included. A complete rationale must be provided for all conclusions reached and opinions expressed. The clinical findings and reasons upon which any opinion is based should be typed or otherwise recorded in a legible manner for review purposes. 3. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications should be associated with the claims folder, if feasible. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2007). 5. After the requested development has been completed, the AMC should readjudicate the merits of the claims based on all the evidence of record and all governing legal authority, including the VCAA of 2000 and implementing regulations, and any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran 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. 2006). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs