Citation Nr: 1101153	
Decision Date: 01/11/11    Archive Date: 01/20/11

DOCKET NO.  07-25 959	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for an eye injury.

3.  Entitlement to an initial rating greater than 10 percent for 
a service-connected right knee disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the 
United States


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

A. G. Alderman, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1997 to November 1997 
and from March 2003 to May 2004.

This case comes before the Board of Veterans' Appeals (Board) on 
appeal from a April 2006 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Seattle, 
Washington.  The claim has since been transferred to the Denver, 
Colorado RO.

The Veteran appeared and provided testimony before the 
undersigned Acting Veterans Law Judge (AVLJ) in August 2010.  A 
transcript of the hearing has been associated with the claims 
file.

The issue of entitlement to an increased rating for a service 
connected right knee disability is addressed in the REMAND 
portion of the decision below and is REMANDED to the RO via the 
Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The evidence of record does not demonstrate a level of 
hearing loss that may be considered a disability for VA purposes.

2.  In August 2010, prior to the promulgation of a decision in 
the appeal, the Board received written notification from the 
Veteran of his desire to withdraw the appeal for service 
connection for an eye disability.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing 
loss have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & 
Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2010).

2.  The criteria for withdrawal of a Substantive Appeal by the 
Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 
2002); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duty 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a) (2010).  

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 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 
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, or regional office (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 held that, upon receipt of an 
application for a service-connection claim, 38 U.S.C.A. § 5103(a) 
and 38 C.F.R. § 3.159(b) require VA to provide the claimant with 
notice that a disability rating and an effective date for the 
award of benefits will be assigned if service connection is 
awarded.

Here, the VCAA duty to notify was satisfied by way of letters 
sent to the Veteran in September 2005 and March 2006 that fully 
addressed all notice elements and were sent prior to the initial 
RO decision in this matter.  The letters informed the Veteran of 
what evidence was required to substantiate the claims and of his 
and VA's respective duties for obtaining evidence.

VA 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 Veteran.  See Bernard v. Brown, 4 Vet. App. 384 
(1993).  The RO has obtained VA outpatient records.  The Veteran 
was provided an opportunity to set forth his contentions during 
the hearing before the undersigned Veterans Law Judge.  The 
Veteran was afforded a VA medical examination in December 2005.  
The Board notes that at the hearing, the Veteran testified his 
last audiological examination had been about a year before, maybe 
a little more.  The RO associated with the claim file all the VA 
outpatient treatment records through August 2010 prior to 
forwarding the claim file for the Board's review.  A review of 
the record shows that the most recent VA audiological examination 
was in June 2008 at which time, the records show, the Veteran was 
issued hearing aides despite the examiner's finding that his 
hearing was within normal limits.  Considering the Veteran's 
testimony and the review of the record the Board concludes that 
there are no outstanding VA treatment records and that despite 
the fact the Veteran has been issued hearing aides, his hearing 
is within normal limits under VA regulation.

Also of record and considered in connection with the appeal is 
the transcript of the Veteran's August 2010 hearing, along with 
various statements submitted by the Veteran and his 
representative, on his behalf.  The Board also finds that no 
additional RO action to further develop the record is warranted.  
The actions of the AVLJ comply with 38 C.F.R. § 3.103.

  Hence, no further notice or assistance to the Veteran is 
required to fulfill VA's duty to assist 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).

Legal Criteria and Analysis

A. 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; 38 C.F.R. § 3.303(a).  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).

Certain chronic diseases, including sensorineural hearing loss, 
may be presumed to have been incurred in or aggravated by service 
if manifest to a compensable degree within one year of discharge 
from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2010); 38 
C.F.R. §§ 3.307, 3.309.

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.  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, 
1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; 
or when the auditory thresholds for at least three of the 
frequencies of 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.  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).

In this case, the evidence fails to show that the Veteran has a 
current hearing loss disability for VA purposes.  Specifically, a 
December 2005 VA examination shows auditory thresholds as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
5
0
5
LEFT
5
15
5
0
5

Speech recognition scores were 100 percent bilaterally.

Another examination was conducted in June 2008.  Auditory 
thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
10
5
10
LEFT
20
25
10
0
10

Speech recognition scores measured 96 percent in the left and 100 
percent in the right.

Because the evidence does not show that the auditory threshold in 
any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 
40 decibels or greater; does not show auditory thresholds for at 
least three of the frequencies are 26 decibels or greater; and 
does not show speech recognition scores using the Maryland CNC 
Test at less than 94 percent, the Board cannot find that the 
Veteran has a current bilateral hearing loss disability for VA 
purposes.  38 C.F.R. § 3.385.  Congress has specifically limited 
entitlement to service-connection for disease or injury to cases 
where such incidents have resulted in a disability.  See 38 
U.S.C.A. §§ 1110.  Hence, in the absence of proof of a present 
diagnosis of any bilateral hearing loss, there can be no valid 
claim for service connection.  See Brammer v. Derwinski, 3 Vet. 
App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 143-144 
(1992).

The Board has considered the Veteran's testimony at the August 
2010 hearing and notes that he and his wife are competent to 
report he has reduced hearing.  See Layno v. Brown, 6 Vet. App. 
465 (1994).  Moreover, the Board finds him credible in his 
assertions.  Nonetheless, the fact remains that while the Board 
accepts that the Veteran has some hearing loss, shown by his and 
his spouse's assertions during the August 2010 Board hearing and 
the medical evidence showing that he has been prescribed hearing 
aids, the disability does not rise to the severity necessary to 
find a current hearing loss disability for VA purposes under 
38 C.F.R. § 3.385.

The Board acknowledges the Veteran's assertions during the 
hearing that he had had a recent VA audiological examination 
which may not have been associated with the record.  He testified 
his last audiological examination had been about a year before, 
maybe a little more.  The RO associated with the claim file all 
the VA outpatient treatment records through August 2010 prior to 
forwarding the claim file for the Board's review.  A review of 
the record shows that the most recent VA audiological examination 
was in June 2008 at which time, the records show, the Veteran was 
issued hearing aides despite the examiner's finding that his 
hearing was within normal limits.  Considering the Veteran's 
testimony and the review of the record the Board concludes that 
there are no outstanding VA treatment records and that despite 
the fact the Veteran has been issued hearing aides, his hearing 
is within normal limits under VA regulation.

For the foregoing reasons, the claim for service connection for 
bilateral hearing loss must be denied.  In arriving at the 
decision to deny the claim, the Board has considered the 
applicability of the benefit-of-the-doubt doctrine.  However, as 
the preponderance of the evidence is against the claim, that 
doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. 
§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).


B. Withdrawal of Appeal

An appeal consists of a timely filed Notice of Disagreement in 
writing, and after a Statement of the Case has been furnished, a 
timely filed Substantive Appeal.  38 U.S.C.A. § 7105(a); 38 
C.F.R. § 20.200.

A Substantive Appeal may be withdrawn in writing at any time 
before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 
20.204(b).  Except for appeals withdrawn on the record at a 
hearing, appeal withdrawals must be in writing.  38 C.F.R. § 
20.204(b).

The record reflects that the Veteran perfected an appeal of a 
June 2006 rating decision that denied service connection for an 
eye disability.  Thereafter, in August 2010, the Board received 
written notification from the Veteran of his desire to withdraw 
his appeal for service connection as to this issue.

The Board finds that this written statement qualifies as a valid 
withdrawal of the issue of entitlement to service connection for 
an eye disability.  See 38 C.F.R.         § 20.202.  Accordingly, 
this claim will be dismissed.




ORDER

The Veteran does not have a hearing loss disability for VA 
purposes.

The appeal seeking service connection for an eye disability is 
dismissed.


REMAND

The Veteran seeks an initial rating greater than 10 percent for 
his service connected right knee disability.  During his 
testimony before the Board, the Veteran testified that his right 
knee disability has worsened since his November 2008 VA 
examination.  Further, an August 2010 VA outpatient treatment 
record shows that the Veteran complained of worsening pain.

The United States Court of Appeals for Veterans Claims has held 
that when a Veteran alleges that his service-connected disability 
has worsened since he was previously examined, a new examination 
may be required to evaluate the current degree of impairment.  
Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 
Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).  Given the 
foregoing, the Veteran should be scheduled for VA examination to 
determine the current nature and severity of his service-
connected right knee disability.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination 
to determine the current severity of the 
Veteran's right knee disability.  The claims 
file should be provided to the examiner for 
review and the examiner should indicate his 
or her review of these items in the 
examination report.

All indicated studies, specifically including 
ranges of motion and tests for instability, 
should be completed.  The examiner should 
determine whether there is additional loss of 
function due to pain, on use, or during 
flare-ups (if any), and, if feasible, express 
the additional impairment of function in 
terms of additional degree of limitation of 
motion.  If this is not possible, the 
examiner should so state.  The examiner 
should also specifically note whether there 
is instability or subluxation, and the degree 
of any such found.  The examiner should 
explain the rationale for all opinions.

2.  Then readjudicate the claim for increased 
rating, to include consideration of the 
possibility of "staged" ratings, if 
indicated.  If either remains denied, the RO 
should issue an appropriate SSOC and afford 
the Veteran and his representative the 
opportunity to respond.  The case should then 
be returned to the Board, if in order, for 
further review.

The Veteran has the right to submit additional evidence and 
argument on the matter 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. 2010).




______________________________________________
E. I. VELEZ
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs