Citation Nr: 1111343 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 09-24 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for residuals of a neck injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The veteran had active military service in the United States Army from October 1984 to February 1985, and the United States Air Force from June to September 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. By that rating action, the RO, in part, denied service connection for right ear hearing loss and residuals of a neck injury. The Veteran appealed the RO's March 2008 rating action to the Board. FINDINGS OF FACT 1. The preponderance of the competent and probative evidence of record does not show that the Veteran currently has right ear hearing loss for VA compensation purposes. 2. The preponderance of the competent and probative evidence of record is against a finding that the Veteran's residuals of a neck injury originated during military service or within the initial post service year or that it is etiologically related thereto. 3. The Veteran's assertion that he has right ear hearing loss and residuals of a neck injury that are etiologically related to his periods of active military service is not competent evidence. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred in or aggravated by active military service, nor may service connection be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113, 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2010). 2. Residuals of a neck injury were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The claimant 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). See also Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120- 21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. The VCAA is not applicable, however, where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In an October 2007 pre-adjudication letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claims. The RO also specified what information and evidence must be submitted by him, what information and evidence will be obtained by VA, and the need for him to advise VA of or submit any further evidence that pertains to the claims. The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO&IC). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA, however, may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, via the above-cited letter, notice was provided prior to the appealed March 2008 rating action. Id. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim (those five elements include: Veteran status, existence of a disability, connection between the Veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this case, via the October 2007 letter, VA informed the Veteran of the Dingess elements with respect to the claims. The RO has taken appropriate action to comply with the duty to assist the Veteran with the development of the claims analyzed below. The record includes service treatment records and post-service private and VA examination medical reports. In November 2007, VA examined the Veteran to determine the etiology of any currently present bilateral hearing loss and residuals of a neck injury. A VA QTC examination and audiogram were performed in January 2008. Copies of the above-cited VA and QTC examination reports are contained in the claims file. The Board finds that there is no further assistance that would be reasonably likely to substantiate the claims analyzed below. II. Merits Analysis Service connection will be granted if it is shown that a Veteran suffers from a disability resulting from an 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 in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for certain chronic diseases, such as sensorineural hearing loss, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). (i) Right Ear Hearing Loss The Veteran contends that he has right hearing loss that is the result of acoustic trauma sustained during his second period of active military service in the United States Air Force. Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385 (2010). Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. Id. The Board finds that the preponderance of the competent and credible evidence of record does not support his contention, and service connection for a right ear hearing loss disability will be denied in the analysis below. The question to be answered is whether the Veteran currently has a right ear hearing loss disability for VA purposes, and, if so, it is etiologically linked to his period of active military service in the United States Air Force. There is no evidence of record showing that the Veteran currently has a right ear hearing loss disability as defined by VA. When VA evaluated the Veteran for his claimed right ear hearing loss disability in November 2007, the Veteran reported having hearing loss but an audiogram was not performed. The VA examiner recommended that the Veteran be scheduled for a complete audiogram. In January 2008, the Veteran underwent a VA QTC examination, which included an audiogram that was conducted in accordance with the above-cited regulations. The audiographic examination was conducted in accordance with 38 C.F.R. § 3.385 (2010), and found that the Veteran's right ear hearing did not manifest the decibel readings which define hearing loss for VA purposes. (See January 2008 audiogram, prepared by Pamela A. O'Bert, MA, CCC-A). Thus, the record contains no evidence of evidence of a current right ear hearing loss disability since he filed his claim for original compensation with VA in October 2007. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). As the competent medical evidence of record is negative for a right ear hearing loss disability for VA compensation purposes, service connection cannot be granted for the claimed disability and the claim must be denied. (ii) Residuals of a neck injury The Veteran contends that he injured his neck during a gym-related incident while on active military service in the United States Air Force. The Veteran's STRs from his second period of military in the United States Air Force show that in September 2002, he sustained a neck sprain during a gym-related accident. At that time, the Veteran developed acute posterior neck pain with no numbness, tingling or weakness of the upper extremities. A physical examination of both arms was "normal." The Veteran's neck was found to have been tender at the posterior aspect of the C7-T1 area. The pain increased with extension of the neck and with left side bending and rotation which were slightly limited when compared to the right side. There was no palpable evidence of any spasm or loss of lordosis. A neurological examination revealed that sensation of the bilateral upper extremities was grossly intact. Deep tendon reflexes were symmetrical. Motor strength was 5/5 and symmetrical. A diagnosis of "INJURY, SPORTS" sprain of the neck was entered. The Veteran was instructed to apply ice-massage and to use medications as prescribed. He was told to return to the clinic if his symptoms persisted or worsened. A subsequent entry contained an assessment of acute neck musculoskeletal strain. When examined for service discharge in December 2002, the Veteran indicated that his health had remained the same since his last examination. He reported that since his previous examination, he had not experienced any injuries or illnesses that had caused him to miss duty for more than three (3) days. Post-service private and VA medical evidence of record reflects that the Veteran has been diagnosed with cervical sprain. (See November 2007 VA spine examination report). Thus, the Veteran's claim hinges on whether there is competent medical evidence of record showing that the above-cited disability is etiologically related to the Veteran's period of military service in the United States Air Force. The Board finds that the preponderance of the competent and credible medical evidence of record is against the claim for service connection for residuals of a neck injury, currently diagnosed as cervical sprain, because there is no nexus to military service. There is one VA medical opinion of record and it is against the claim. In November 2007, a physician concluded that, "Overall there is no evidence in the C-file/SMR or review of the whole case, that any of this patient's current neck condition were in anyway caused by or incurred in or aggravated by or permanently worsened military service beyond its natural course." (See November 2007 VA examination report). This opinion was provided after a physical evaluation of the Veteran's neck and review of the claims files, to include the above-cited STRS and post-service medical records, reflecting that the Veteran had sought treatment for right shoulder and neck pain during an alcohol-related detoxification admission. The November 2007 VA examiner provided a complete rationale for his opinion, relying on and citing to the records reviewed. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Here, the VA examiner specifically indicated that after service discharge, the Veteran had not sought any treatment for his neck until 2007, when he was seen for right shoulder and neck pain during an alcohol-related detoxification admission. There is no other opinion, private or VA, that refutes the above-cited VA examiner's opinion and that is supportive of the claim. Thus, the most probative medical evidence of record shows no relationship between the Veteran's currently neck sprain and his period of active military service in the United States Air Force. Thus, service connection for residuals of a neck injury is not warranted. The Veteran is competent to provide statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing pain in the Veteran's feet and shortness of breath). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's assertion is not competent medical evidence to support a finding that his residuals of a neck injury, current diagnosed as neck sprain, is etiologically related to his period of active military service in the United States Air Force. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The Veteran has not shown, nor claimed, that he possesses the medical expertise that is required to render a competent opinion as to actual diagnoses and/or medical causation. See Barr, supra; Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) ((cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise)). As there is no competent medical evidence of record to support the claims for service connection for right ear hearing loss and residuals of a neck injury, the preponderance of the evidence is against the claims, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for right ear hearing loss is denied. Service connection for residuals of a neck injury is denied ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs