Citation Nr: 1035294 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 06-19 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial compensable rating for a right index finger disability. 3. Entitlement to an initial compensable rating for a left ankle disability. 4. Entitlement to an initial compensable rating for a right knee disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran had active service from January 1999 to July 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2005 and March 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his substantive appeal, the Veteran requested a Board hearing, but failed to report to his scheduled hearing in April 2009. Thus, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2009). The issues of entitlement to initial compensable ratings for right index finger, left ankle, and right knee 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. When the Veteran's hearing was tested, the auditory threshold in the right ear at any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) was not 40 decibels or greater; the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz were not 26 decibels or greater; and speech recognition scores using the Maryland CNC Test were not less than 94 percent. 2. The Veteran's left ear hearing loss did not have onset in service and was not caused or aggravated by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the RO. 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 (Veterans Court) 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 elements of the claim, including notice of what is required to establish service connection. The Veteran must also be informed 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 satisfied by letters sent to the Veteran in August 2005 and March 2006. This letter informed the Veteran of the evidence required to substantiate his claim and of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006) With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice as to what is required to substantiate service connection was provided in August 2005 prior to the rating decision issued in November 2005; thus, this notice was timely. Although the March 2006 notice letter not sent before the initial RO decision in this matter, the RO readjudicated the case by way of supplemental statements of the case issued in May 2007 and June 2008. Because the appellant's claim of service connection for bilateral hearing loss is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he failed to report for his Board hearing when it was scheduled in April 2009. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran also has been provided with a VA examination in February 2006 which addresses the contended causal relationship between the claimed disability and active service. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data and provided a rationale for the opinion rendered. There is no competent evidence, other than the Veteran's statements, which indicates that bilateral hearing loss may be associated with service. The Veteran is not competent to testify as to etiology of this disability as it requires medical expertise to diagnose. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Service Connection 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 (West 2002); 38 C.F.R. § 3.303(a) (2009). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2009). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran's hearing was tested prior to induction into service in November 1998. Pure tone thresholds measured in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 0, 0, 5, 10, and 5 decibels, respectively. Pure tone thresholds measured in the left ear at 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 0, 0, 15, 55, and 40 decibels, respectively. Speech recognition test scores were not provided. Thus, the Veteran already had a hearing loss disability in his left ear prior to enlistment. The Veteran's hearing was tested again in January 1999. At that time, pure tone thresholds measured in the right ear at 500, 1,000, 2,000, 3, 000, and 4,000 Hertz were 5, 0, 5, 25, and 10 decibels, respectively. Pure tone thresholds measured in the left ear at 500, 1,000, 2,000, 3, 000, and 4,000 Hertz were 5, 5, 15, 20, and 25 decibels, respectively. Speech recognition test scores were not listed. Audiometric testing was provided periodically throughout the Veteran's service, with normal hearing in both ears except for high frequency hearing loss in the Veteran's left ear. The Veteran's service treatment records show that on several occasions, the Veteran requested a waiver of training standards due to his high frequency hearing loss in the left ear. In May 2005, at the Veteran's separation examination, pure tone thresholds measured in the right ear at 500, 1,000, 2,000, 3, 000, and 4,000 Hertz were 0, 5, 5, 20, and 15 decibels, respectively. Pure tone thresholds measured in the left ear at 500, 1,000, 2,000, 3, 000, and 4,000 Hertz were 10, 5, 20, 55, and 55 decibels, respectively. Speech recognition test scores were not listed. Thus, at separation from service, the Veteran did not have a hearing loss disability his right ear and while he still had a hearing loss disability in the left ear, it had not changed significantly between enlistment and separation. In February 2006, the Veteran underwent a VA hearing evaluation in connection with his current claim. The Veteran reported noise exposure in the military from mortars, machine guns, grenades, and small arms fire. He denied significant non-military noise exposure. He also complained of bilateral recurrent tinnitus. Pure tone thresholds measured in the right ear at 500, 1,000, 2,000, 3,000 and 4,000 Hertz were 5, 5, 10, 25, and 20 decibels, respectively. Pure tone thresholds measured in the left ear at 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 5, 10, 20, 55, and 55 decibels, respectively. Speech recognition test scores showed right ear discrimination at 100 percent and left ear discrimination at 96 percent. Thus, the Veteran did not meet the criteria for a hearing loss disability set forth at 38 C.F.R. § 3.385 for his right ear, but did meet the criteria for a hearing loss disability in the left ear. The examiner concluded, however, that the Veteran's left ear high frequency hearing loss pre-existed the Veteran's military service and was not caused or aggravated by the Veteran's active military service. He based his opinion on a review of the Veteran's service treatment records, the Veteran's current audiological test results, and a consultation with the Chief of Audiology of the Dallas VA Medical Center. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Board concedes that the Veteran was exposed to acoustic trauma in service. For purposes of applying the laws administered by VA, however, impaired hearing will be considered to be a disability only when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 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 As the Veteran does not currently meet this criteria for hearing loss in his right ear, entitlement to service connection for right ear hearing loss is not warranted. Further, although the Board acknowledges that the Veteran meets the criteria for a hearing loss disability in his left ear, this hearing loss existed prior to his enlistment, as noted on his November 1998 examination, and was not aggravated by his enlistment. A VA examiner opined that it was less likely than not that the Veteran's left ear hearing loss was caused or aggravated by the Veteran's military service. Accordingly, the Board finds that entitlement to service connection for left ear hearing loss also is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND The Veteran is seeking initial compensable ratings for his service connected right index finger, left ankle, and right knee disabilities. He specifically contends that each of these service-connected disabilities is more disabling than currently evaluated. The Veteran's most recent VA examination for these disabilities occurred in February 2006. The Veteran has contended that his conditions have worsened since this examination. Generally, VA has a duty to provide additional examination when the claimant alleges that the disability in question has undergone an increase in severity since the time of the last examination. VAOPGCPREC 11-95 (Apr. 7, 1995). Therefore, this case must be remanded to afford the Veteran a new VA examination to determine the current severity of his service connected right index finger, left ankle, and right knee disabilities. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and request that they identify all VA and non-VA clinicians who have treated him for right index finger, left ankle, and right knee disabilities since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any response(s), to include a negative reply and any records obtained, should be included in the claims file and communicated to the Veteran. 2. Schedule the Veteran for appropriate VA examination(s) to determine the current nature and severity of his service connected right index finger, left ankle, and right knee disabilities. The claims file should be provided to the examiner(s) for review. The examiner(s) should note any functional impairment caused by the Veteran's disabilities, including a full description of the effects of his disabilities upon his ordinary activities, if any. All findings should be described in detail and all necessary diagnostic testing, including range of motion testing (in degrees), should be conducted as appropriate. 3. Thereafter, readjudicate the Veteran's claims for initial compensable ratings for right index finger, left ankle, and right knee disabilities. If the benefits sought on appeal remain denied, the Veteran and his service representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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. 2009). ______________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs