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