Citation Nr: 1300330	
Decision Date: 01/04/13    Archive Date: 01/11/13

DOCKET NO.  08-10 229	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for residuals of a coccyx injury.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

P. Olson, Counsel



INTRODUCTION

The Veteran had active military service from May 1972 to May 1975 and from July 1991 to January 1992.

This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in April 2010.  This matter was originally on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Huntington, West Virginia.


FINDINGS OF FACT

1.  The Veteran's hearing acuity demonstrated is of insufficient severity to constitute a disability for which service connection can be granted under applicable VA regulation.

2.  The evidence does not demonstrate a current, chronic disability of the coccyx that has been related to the Veteran's active service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).

2.  A current, chronic disability of the coccyx was not incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matter

Pursuant to the Board's April 2010 Remand, the Appeals Management Center (AMC) obtained all outstanding medical records identified by the Veteran, scheduled the Veteran for VA examinations to determine the existence and etiology of any hearing loss and residual disability from a claimed coccyx injury, readjudicated the Veteran's claims under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case.  Based on the foregoing actions, the Board finds that there has been compliance with the Board's April 2010 Remand.  Stegall v. West, 11 Vet. App. 268 (1998).

Veterans Claims Assistance Act of 2000

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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

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); 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.  

With respect to service connection claims, 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 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VA has met all statutory and regulatory notice and duty to assist provisions.  Letters dated in May 2005 and May 2008 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473.  Together, the letters informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates.  

Ideally, the notice required by 38 U.S.C.A. § 5103(a) 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).  Although that was not done in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ).  For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication.  

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The Veteran was accorded VA examinations in May 2010 and September 2011.  38 C.F.R. § 3.159(c)(4).  The May 2010 VA examiner addressed the existence and etiology of hearing loss in conjunction with a review of the claims file and physical examination of and interview with the Veteran.  The September 2011 VA examiner addressed the existence of residuals from a claimed coccyx injury in conjunction with a review of the claims file and physical examination of and interview with the Veteran.  The May 2010 and September 2011 VA examination reports are thorough; thus these examinations are adequate upon which to base a decision. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) 

Service Connection

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  


Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology.  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b).  

To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims, has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385 then operated to establish when a hearing loss could be service connected.  Hensley, 5 Vet. App. at 159.  For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (2012).  

With respect to the Veteran's claim for service connection for hearing loss, despite the fact that the Veteran has been diagnosed as having partial hearing loss and mild, high frequency, sensorineural hearing loss starting at 6000 Hertz, the hearing demonstrated by the Veteran has not been shown to meet the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.  

On VA audio testing in March 2008, pure tone thresholds, in decibels, were as follows:

Hertz
500

1000

2000

3000

4000

RIGHT
10
10
10

10
LEFT
05
10
10

15

Speech reception thresholds in the right ear were 100 percent and in the left ear was 96 percent.

On VA audiometric examination in May 2010, pure tone thresholds, in decibels, were as follows:


500

1000

2000

3000

4000

RIGHT
10
15
10
20
25
LEFT
10
10
10
15
25

Speech reception thresholds in the right ear were 100 percent and in the left ear was 96 percent.

Similarly, with respect to the Veteran's claim for service connection for residuals of a claimed coccyx injury, the post-service medical records do not include any complaints of or treatment for coccyx problems.  The Veteran underwent VA examination in September 2011 at which time he reported that he had a car accident in May 1974 and that he was told while in the hospital that he had a fracture of the coccyx and that he has had lower back pain since then.  The examiner noted,

On reviewing the Veteran's service medical record, I have not seen any kind of fracture of the coccyx while he was in Ireland Army Hospital, Fort Knox, Kentucky:  back in May 31, 1974.  The Veteran has degenerative disk disease of the lumbosacral spine which is more likely a part of generalized degeneration due to age.  Today's lumbar spine x-rays also do[] not reveal[] old healed fracture of coccyx.

In this case, the Board finds that the medical evidence which indicates that the Veteran did not have a fractured coccyx during service and does not currently have residuals of a fractured coccyx is more probative than the Veteran's recollections that he was informed while in the hospital during service that he suffered a fractured coccyx.    

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110 (2012); see also Degmetich v. Brown, 104 F.3d 1328 (1997).  It is well settled that in order to be considered for service connection, a claimant must first have a disability.  In Brammer v. Derwinski, 3 Vet. App. 223   (1992), it was noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents resulted in disability. 

Thus, the medical evidence fails to show that the Veteran currently suffers from bilateral hearing loss disability for VA purposes or residual disability from a claimed coccyx injury.  In the absence of competent medical evidence that a bilateral hearing loss disability and residual disability from claimed coccyx injury exist and that they were caused by or aggravated by the Veteran's active service, the criteria for establishing service connection for bilateral hearing loss disability and residual disability from coccyx injury have not been established.  38 C.F.R. § 3.303 (2012). 



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ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for residuals of a coccyx injury is denied.


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs