Citation Nr: 1104323 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 08-22 144 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral foot disabilities, claimed as residuals of injury. 3. Entitlement to a disability rating in excess of 30 percent for right hand neuropathy with scarring. 4. Entitlement to service connection for right lateral epicondylitis. 5. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from October 1997 to October 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an RO decision of August 2007. It was previously before the Board in August 2010 when it was remanded for the purpose of providing the Veteran with a hearing before a Veterans Law Judge. However, in a September 2010 communication, the Veteran clarified that he no longer desires a hearing on appeal. His request is thus considered to have been withdrawn. 38 C.F.R. § 20.702(e). His claim will thus be adjudicated without further delay based upon all the evidence presently of record. The issues of entitlement to a disability rating in excess of 30 percent for right hand neuropathy with scarring, entitlement to service connection for right lateral epicondylitis, and entitlement to service connection for PTSD 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. The Veteran does not have a current hearing loss disability, under governing regulation. 2. No injury to the Veteran's feet is reflected in his service records. 3. No nexus is shown between the Veteran's current foot disabilities of plantar fasciitis and pes cavus and his service or any event therein. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss must be denied. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2010). 2. Service connection for bilateral foot disabilities is not warranted. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. § 3.303(2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Review of the claims file shows that the Veteran was informed of these elements with regard to his claims in a letter of April 2007 prior to the initial adjudication of his claims. VA medical records and VA examination reports have been obtained and reviewed in support of the Veteran's claims. The Veteran and his representative have presented written statements in support of his claims. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. When a chronic disease such as an organic disease of the nervous system or arthritis becomes manifest to a degree of 10 percent within one year of the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Bilateral hearing loss For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 200, 3000, or 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. A threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown present. 38 U.S.C.A. §§ 1110, 1131. The Court has interpreted the requirement of current disability thus: Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition to disease or injury in service, service connection requires competent medical evidence of a current related disability. Degmetich v. Brown, 104 F.23d 1328 (1997). In this case, the Veteran's service treatment records contain several reports of audiological testing, specifically conducted because the Veteran was deemed to have been routinely exposed to hazardous noise. According to these reports, the veteran was issued hand-formed earplugs for personal hearing protection on the job. His hearing acuity was within normal limits upon each test conducted. Several instances of clogged or muffled ears associated with upper respiratory infections are reflected in his service treatment records, as well. Although the Veteran filed a claim for VA compensation related to his right hand injury in November 2000, he did not complain of hearing loss at that time. During the December 2000 VA general medical examination, he did not complain of hearing loss either. The Veteran underwent a VA audiological evaluation in connection with the instant claim in June 2007. His hearing acuity and speech recognition were within normal limits with pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 20 30 LEFT 15 10 15 20 20 The average pure tone threshold in the right ear was 18.75 decibels, and the average in the left ear was 16.25 decibels. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The audiologist commented that the Veteran had a non-disabling hearing loss, manifested by mild high frequency hearing loss in both ears. No follow-up care was indicated. The Veteran's VA claims file was provided to a VA audiological examiner in August 2007. The examiner clarified the Veteran's diagnoses as reflecting normal to moderate sensorineural hearing loss in the right ear which does not meet the disability criteria set forth in the VA regulations and normal hearing in the left ear. Given the definition of hearing loss disability set forth in 38 C.F.R. § 3.385, the Board is required to deny the Veteran's claim on the basis that he does not have a current hearing loss disability, as defined by VA regulation. Additionally, we note that he does not require regular audiologic evaluation or care and he does not require hearing aids. Absent a current disability, a grant of service connection would be inappropriate. The benefit sought must be denied. The Veteran contends that his hearing acuity is impaired to the point where he has difficulty hearing his wife's and his children's voices, and sometimes misinterprets what is said to him at work and at home. He argues that the VA definition of hearing loss disability does not reflect his real life situation, and requests that his claim be given consideration on an extra- schedular basis. Although the Board is sympathetic to the Veteran's difficulty hearing, we are bound by the laws and regulations which govern the adjudication of Veteran's benefits. Applying these laws and regulations yields the result explained above; we are without authority to craft a special remedy just for one particular Veteran; indeed to do so would violate not just the law but the VA's very mission to take care of all Veterans and in doing so to treat all claimants equally. Extraschedular consideration is predicated upon a grant of service connection; as service connection is denied in this case, rating the level of impairment is inappropriate. Residuals of bilateral foot injuries The Veteran contends that he sustained multiple injuries to his feet during service because he walked with an altered gait. He asserts that he wore the heels of his boots and shoes unevenly because of foot problems in service and had to replace his boot heels once a month throughout service on account of this abnormal wear. He contends that these injuries in service have caused permanent foot problems and requests service connection. The Veteran's service treatment records are negative for any foot problems. The Veteran has pointed to a record showing that he was given light duty at one point during service as evidence of foot problems; however, careful review of this record shows that no reason for the light duty assignment is provided. Even accepting the Veteran's recollection that the light duty was given on account of foot complaints, absent further information, we cannot assume that the foot complaints represented a permanent problem or a chronic disability. Rather, the fact that the Veteran was not given a permanent profile during service would tend to indicate that whatever his complaint was, it was not considered to have been chronic. Although the Board does not dispute the Veteran's assertion that he required new boot heels each month, this is not corroborated in the contemporaneous evidence of record. Review of the recent medical evidence of record shows that the Veteran currently has diagnoses of plantar fasciitis and pes cavus. He receives treatment for both foot conditions. A March 2008 physical medicine consultation report reflects bilateral high arched feet with "related chronic plantar fasciitis," indicating that his plantar fasciitis may be etiologically related to his pes cavus. Neither problem has been linked by a physician to altered gait, abnormal or poor-fitting footwear or to service in any way. A copy of a U.S. Department of Labor form was submitted to the VA in November 2007. The form is signed by the Veteran and by a VA podiatrist. One portion of the form includes the following statement: "Service related foot injury. Intermittent leave required for treatment. Abscense (sic) from agency when flare ups occur. At discretion when flare ups occur employee entitled to miss work to seek treatment and if pain occurs. Frequency could vary weekly, monthly, whenever pain occurs." Although it is unclear whether the Veteran or the podiatrist authored this portion of the response, this portion appears to be in a different handwriting than the rest of the form. Nowhere on the form does a diagnosis of the current disability involving the Veteran's foot or feet appear, and the symptomatology and impairment involved in the "flare ups" is not described or specified. Furthermore, the basis for the conclusion that the "foot injury" is "service related" is not specified or explained. Additionally, we note that none of the VA podiatry records contained in the claims file reflect such findings or conclusions. In sum, the Board can only conclude that this form is of limited probative value as far as establishing service connection for a bilateral foot disability. In sum, no foot injuries are reflected in the Veteran's service treatment records, no complaints of foot problems proximate to service are included in the evidence of record, and no other nexus between the currently-shown plantar fasciitis and pes cavus is shown in the evidence of record. The Veteran does not have arthritis affecting his feet, and no arthritis is shown within a year of discharge from service. Thus, arthritis may not be presumed under law to have had its inception during service. The Veteran's assertion that his current problems are related to events during service cannot be accorded probative weight in this context. Generally, lay persons ostensibly untrained in medicine can provide personal accounts of symptomatology, but cannot provide evidence constituting a medical conclusion, such as an opinion as to the medical characteristics of symptoms or the etiology of a disease. For the most part, medical testimony must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. As a lay person, the Veteran is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The preponderance of the evidence is against the Veteran's claim for service connection for residuals of foot injuries and the claim must be denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for residuals of bilateral foot injuries is denied. REMAND Historically, the Veteran sustained a laceration of his right thumb in the area between the right thumb and the right index finger during service. The cut was sutured at the time and healed without incident. Numbness in the area was noted, however. The Veteran filed a claim for VA compensation upon his discharge from service. Service connection for neurological damage and the related scar was granted in a January 2001 decision. A hyphenated Diagnostic Code 7805-8515 was assigned to represent the impairment related to the scar and the nerve damage, as rated together. See 38 C.F.R. § 4.27. A 10 percent disability rating was assigned at that time, but increased to 30 percent effective in October 2005, based upon a showing of increased neuropathy. Although service treatment records reflect that the Veteran is ambidextrous, his right hand has been treated as his dominant hand for purposes of rating this disability. The Veteran filed the current claim for an increased rating greater than 30 percent in March 2007. Because this appeal has been ongoing for a lengthy period of time, and because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). In another relevant precedent, the Court noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In reaching this conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. 38 U.S.C.A. § 5110; Hart v. Mansfield, 21 Vet. App. 505 (2007). Review of the medical evidence reflecting the condition of the Veteran's right thumb during the appeal period reveals several areas requiring additional evidentiary development. Initially, we note private medical records indicating that the Veteran was planning to undergo carpal tunnel release surgery in the spring of 2010. VA treatment notes dated in May 2010 and July 2010 indicate that he did have the surgery, but was disappointed with the results. However, the reports reflecting the actual surgery and follow-up care are not of record. As the Veteran's service connection grant includes neuropathy of the median nerve, medical evidence of surgery for release of his carpal tunnel is relevant to our review of his increased rating claim. Therefore, upon remand, the RO should work with the Veteran to obtain copies of records reflecting this private medical treatment. Secondly, the evidence currently of record is unclear as to what portion of the Veteran's currently-shown neuropathy may be attributed to the original in-service injury versus what portion may be attributed to post-service repetitive motion injuries sustained during the course of his employment with the post office. For instance, following a June 2007 VA examination, the examiner rendered a diagnosis of chronic mild neuropathy of the right hand/thumb with a scar with an area of lessened sensation over the laceration and distal thumb as well as the dorsal web space and to the index, and long finger dorsum. The examiner commented that the disability's impact upon the Veteran's occupational activities included decreased manual dexterity, problems with lifting and carrying, and difficulty reaching. However, in an April 2008 statement, the Veteran's VA primary care nurse practitioner opined that the Veteran had developed mild right upper extremity median nerve damage after laceration injury in 1998 but that since working at his current job with the Postal Service the condition had worsened so that he now has persistent neuropathy of the right hand along multiple nerve distributions with diffuse weakness caused by long term repetitive motion activities performed at work. Additionally, as noted by a VA neurologist in May 2008, multiple specialists have documented in the past difficulties reconciling physical examination findings with functional limitations as reported by the veteran. Therefore, upon remand, medical clarification should be obtained as to the extent of the Veteran's current, post-surgical, impairment, and the etiology of all impairment, to include whether any of his impairment would more properly be attributed to post-service activities than to residuals of the in-service injury. As the Veteran continues to receive VA medical care in addition to private medical care, his VA records should be updated for the claims file as well. VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran filed claims for entitlement to service connection for right lateral epicondylitis and PTSD in July 2008. The RO denied the benefits sought in a May 2010 rating decision, providing notice of the denial in a letter dated the same month. The Veteran filed a notice of disagreement as to the denial in July 2010. The Board finds that this July 2010 statement constitutes a notice of disagreement with the May 2010 decision, because it was filed within the requisite time period and it indicates dissatisfaction and a desire to contest the denial. See 38 C.F.R. §§ 20.201, 20.302. It does not appear that the RO has yet issued a statement of the case, although given the timing with the Board's previous remand and the return of the claims file to the Board, any delay in this matter is reasonable. It also appears that evidentiary development remains on-going with regard to the PTSD claim. Nevertheless, it is the responsibility of the Board to identify this potential deficiency in the record. After a notice of disagreement has been filed in any claim, the RO is required to issue a statement of the case containing a summary of the evidence, the applicable laws and regulations, and an explanation as to the decision previously reached, unless the Veteran has withdrawn the notice of disagreement. 38 C.F.R. §§ 19.26, 19.29. Technically, when there has been an initial RO adjudication of a claim and a notice of disagreement has been filed as to its denial, thereby initiating the appellate process, a remand is required for procedural reasons. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, the Board accepts limited jurisdiction over these issues, for the sole purpose of remanding to order issuance of a statement of the case along with information about the process for perfecting an appeal as to this claim, if the Veteran so desires. Accordingly, the case is REMANDED for the following actions: 1. After securing the necessary release, the RO should obtain copies of records reflecting evaluation, treatment, and carpal tunnel release surgery at Gunderson Lutheran Hospital for the time period from March 2006 (one year prior to the filing of the current claim) until the present. All attempts to obtain these records and any difficulties experienced in obtaining these records should be fully documented for the claims file. 2. All records related to VA medical care provided for the Veteran's right hand and wrist, including any/all pharmacological, physical therapy, prosthetic care, neurologic, primary care, and orthopedic records, generated by the Tomah VA medical system subsequent to May 2010 should be obtained for inclusion in the claims file. 3. After the records requested above have been obtained, the veteran should be afforded a VA neurological examination to identify all current functional impairment resulting from the in-service laceration injury. The claims folder must be made available to the examiner for review before the examination. All tests and studies deemed helpful by the examiner should be performed in conjunction with the examination. The examiner is requested to review the medical evidence of record in addition to performing a clinical examination of the Veteran's right hand and wrist. All relevant findings should be fully described and the Veteran's right hand functioning should be fully described. The scar(s) should be fully described, as well. The examiner is then requested to render an opinion as to what portion of the Veteran's currently-shown neuropathy may be attributed to the original in-service injury versus what portion may be attributed to post-service repetitive motion injuries sustained during the course of his employment with the post office. If the employment-related impairment represents an aggravation of the original injury which would not have occurred but for the presence of the original injury, this should be stated. The complete rationale for all conclusions reached should be fully explained. 4. After the development requested above has been completed, to the extent possible, the RO should again review the record, performing a longitudinal review as to the appropriate disability rating(s) to be assigned to the Veteran's right hand neuropathy throughout the appeal period from March 2006 until the present. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. 5. The RO should furnish the Veteran with a Statement of the Case pertaining to the issues of entitlement to service connection for right lateral epicondylitis and PTSD. These claims will not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal. The Veteran 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 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs