Citation Nr: 1109627	
Decision Date: 03/11/11    Archive Date: 03/24/11

DOCKET NO.  07-09 360	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to service connection for a back disability.

3.  Entitlement to service connection for a bilateral knee disability. 


REPRESENTATION

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


ATTORNEY FOR THE BOARD

J. Davitian, Counsel



INTRODUCTION

The Veteran served on active duty from June 2000 to June 2004.

This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which, inter alia, denied the benefits sought on appeal.


FINDINGS OF FACT

1.  There has been no demonstration by competent medical,  nor competent and credible lay, evidence of record that the Veteran has bilateral hearing loss disability for VA purposes. 

2.  There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran has a back disability. 

3.  There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran has a bilateral knee disability. 


CONCLUSIONS OF LAW

1.  Bilateral hearing loss disability was not incurred in or aggravated by active service, and may not be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010).

2.  A back disability was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2010).

3.  A bilateral knee disability was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).

Duty to Notify

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) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Upon receipt of an application for "service connection," therefore, VA is required 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 the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded.

In correspondence dated in June 2004, VA informed the appellant of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence.  Correspondence dated in March 2006 notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman.

In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision.  Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini.  Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error.  Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter in a March 2007 statement of the case and an April 2009 supplemental statement of the case, and the appellant therefore has not been prejudiced.  The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman.  The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices.

The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996).  The Board finds the VCAA notice requirements have been met in this case.

Duty to Assist

The record contains the Veteran's service treatment records and VA medical records.  The Board has carefully reviewed the evidence and concludes that there has been no identification of further available evidence not already of record.  

The appellant was afforded VA examinations for these claims in September 2004.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA reports obtained in this case are more than adequate, as they are predicated on a reading of the Veteran's claims file and the results of the current examinations.  They considered all of the pertinent evidence of record, to include the statements of the Veteran.  Rationales were provided for the opinions stated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue has been met.  38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  

The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.

Legal Analysis

With respect to each of the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.

A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  See 38 C.F.R. § 3.303(b).  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997).

Certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system) and arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

With respect to the Veteran's hearing loss claim, 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 determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385 (2010).

The Veteran generally contends that he has bilateral hearing loss, a back disability and a bilateral knee disability as a result of active duty.  

Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against each of the Veteran's service connection claims.  The Board finds that the evidence does not show that the Veteran has any of the claimed disabilities.  

Turning to the Veteran's claimed bilateral hearing loss, the report of a September 2004 VA audio examination reflects that the examiner reviewed the Veteran's claims file and found that hearing evaluations conducted in November 2000 and May 2004 (i.e., during active duty) indicated hearing sensitivity within normal limits for all frequencies tested in both ears.  It sets forth the Veteran's subjective complaints of difficulty understanding conversation level speech in noisy environments.  The Veteran's military noise exposure was being in the infantry.  Current pure tone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
00
5
LEFT
5
10
00
00
10

Speech audiometry revealed speech recognition ability of 100 percent bilaterally.  The diagnosis was hearing sensitivity within normal limits for both ears.  The examiner stated that the Veteran's claimed hearing impairment was not at least as likely as not caused by experiences while in the Army.  

The Board observes that the Veteran's audiometric findings do not represent hearing loss disability for VA purposes.  38 C.F.R. § 3.385.  

A July 2007 VA outpatient audio consult report provides that the audiologist reviewed the Veteran's September 2004 VA audio examination.  On examination, the Veteran had bilateral normal hearing with a notch at 4 KHz in the right ear.  The audiologist stated that no change was noted compared to the 2004 VA audio examination except for possible hearing decrease in hearing at 4000 Hz in the right ear.  The Board notes that this outpatient audio consult report does not show that the Veteran has hearing loss for VA purposes.  38 C.F.R. § 3.385.  

Turning to the Veteran's claimed back and bilateral knee disabilities, the report of a September 2004 VA general medical examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results.  The examiner noted that musculoskeletal examination was normal, with no joint pathology noted.  She noted that there were separate worksheets for the knees and back since the Veteran was claiming those disabilities.  She noted that X-rays of the bilateral knees and lumbar spine were essentially normal.  The resulting final diagnoses were normal knee examinations bilaterally, and normal lumbar spine examination.  

A separate examination report for the Veteran's knees, with the same date and examiner as the VA general medical examination, notes that the Veteran was having a good day with no symptoms during the examination.  The report sets forth the examination results in detail.  An X-ray of the bilateral knees was noted to revealed mild narrowing of the joint spaces medially on both sides, otherwise normal examinations.  The final diagnosis was normal knee examinations bilaterally, no traumatic arthritis.  

A separate examination report for the Veteran's back, with the same date and examiner as the VA general medical examination, notes that there were no symptoms during the examination.  The report sets forth the examination results in detail.  An X-ray of the lumbosacral spine was noted to reveal a normal lumbar spine.  The final diagnosis was normal lumbar spine examination.  

The Board finds that the September 2004 VA examination reports are highly probative evidence against the Veteran's claims.  They are based on the results of current physical and radiographic examinations and are supported by reference to them.  This fact is particularly important, in the Board's judgment, as the reference makes for a more convincing rationale.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history).

March 2007 VA outpatient treatment reports reflect that the Veteran complained of ongoing back and knee pain.  No diagnoses were made.  

The Board recognizes the Veteran's statements made in support of his claims.  The Veteran is competent to report having sustained acoustic trauma during active duty.  Since his contentions are consistent with the circumstances of his service, including receipt of the Combat Infantryman Badge, such assertions are deemed to be credible.  The Veteran is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing hearing loss or back or knee problems during or after service).  Barr, supra; Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Board finds him to be credible in this regard.  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, however, is not competent to diagnose himself with bilateral hearing loss disability for VA purposes, a back disability, or a bilateral knee disability.  A layperson is generally not deemed competent to express an opinion on a matter that requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  The Court has held that "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. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).  As there is no evidence of a current hearing loss disability for VA purposes, back disability or bilateral knee disability for which service connection may be granted, service connection is not warranted.

In sum, there has been no demonstration by competent clinical evidence of record that the Veteran is entitled to service connection for bilateral hearing loss disability, a back disability or a bilateral knee disability.  As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).

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ORDER

Service connection for a bilateral hearing loss disability is denied.

Service connection for a back disability is denied.

Service connection for a bilateral knee disability is denied.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs