Citation Nr: 1300588 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-30 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for disability due to a cerebrovascular accident (stroke). 4. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a heart disorder. 5. Entitlement to a compensable initial rating for service-connected right ear hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to September 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Atlanta, Georgia. The issues of whether new and material evidence has been received to reopen the previously denied claim of service connection for a heart disorder, entitlement to service connection for hypertension, entitlement to service connection for disability due to a cerebrovascular accident (stroke), and entitlement to a compensable initial rating for service-connected right ear hearing loss, 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. FINDING OF FACT The Veteran currently is not shown to have left ear hearing loss disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Concerning the appeal of the claim for service connection claim for left ear hearing loss, now being adjudicated by the Board, a December 2007 letter from the RO notified the Veteran of the information and evidence necessary to substantiate his claim of service connection, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. The letter also advised the Veteran to submit or identify any additional information that he felt would support his claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The December 2007 letter also included the additional requirements delineated by the United States Court of Appeals for Veterans Claims (Court) in Dingess/Hartman. For the reasons discussed above, therefore, the Board finds that VA has fulfilled its VCAA notification duties to the Veteran to the extent necessary. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. He has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to the VA notice. There is no evidence of any failure on the part of VA to further comply with the duty to notify that reasonably affects the outcome of this case. The duty to assist the appellant has also been satisfied in this case. Service treatment records and available post-service medical records are in the claims file and were reviewed by both the RO and Board in connection with the appellant's claims. With regard to the claim for service connection for left ear hearing loss, a VA audio examination was provided in January 2008. 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 examination report in this case is adequate, even though the examiner did not have access to the Veteran's service and post-service medical records. This is because left ear hearing loss "disability," as defined in 38 C.F.R. § 3.385 (2012), was not shown in the course of the examination. Thus, there is adequate medical evidence of record to make a determination in this case with regard to the claim for service connection for left ear hearing loss. 38 C.F.R. § 3.159(c)(4). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Board acknowledges that lay assertions 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 subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence is one type of evidence that must be considered, if submitted, when a Veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of his appeal for service connection for left ear hearing loss. Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired hearing will be 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 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Certain chronic diseases, such as hearing loss, as an organic disease of the nervous system, are presumed to have been incurred in, or aggravated by, service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, at 309. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Factual Background The Veteran served on active duty from September 1973 to September 1994. His service treatment records include examination reports dated in September 1973, August 1974, May 1982, July 1987, June 1992, and May 1994. None of these examination reports make mention of either complaints or treatment pertaining to left ear hearing loss. Other in-service audio testing reports are on file, including Hearing Conservation Data forms. None of the service treatment records show the presence of left ear hearing loss. See Hensley; 38 C.F.R. § 3.385. The report of a VA audio examination, dated in January 2008, shows that the Veteran complained of decreased hearing over the past 17 to 18 years. He reported both military noise exposure (including small arms fire and grenades), as well as occasional post-service recreational noise exposure (such as lawnmowers, power tools, and hunting). Audiometric examination failed to show current left ear hearing loss disability for VA service-connection purposes under 38 C.F.R. § 3.385. Left ear speech recognition was 96 percent. Analysis In this case, service treatment records, concerning the Veteran's left ear hearing acuity, failed to show audiometric results that were not within the normal range, and there were no complaints or other medical findings pertinent to left ear hearing loss shown in the service treatment records. The Board finds that service connection may not be granted in this case because current audiometric findings -- for that matter, all audiometric findings on file -- do not show a severity of left ear hearing loss that meets VA requirements for a disability under section 3.385. Concerning this, the Board again notes that the January 2008 VA audio examination report reflects results of audiometric testing that do not meet the criteria for left ear hearing loss disability under 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, on this record, the Veteran is not shown to have left ear hearing loss "disability" as defined for VA service connection purposes in 38 C.F.R. § 3.385. Further, the Board notes that the Veteran has not informed VA that his left ear hearing loss has worsened since January 2008 to a degree where the criteria of 38 C.F.R. § 3.385 would be met. In summary, as current left ear hearing loss disability as defined in 38 C.F.R. § 3.385 is not shown, the claim of service connection must be denied under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Entitlement to service connection for left ear hearing loss is denied. REMAND Although the Board regrets the additional delay, a remand, concerning the remaining issues on appeal, is necessary to ensure that due process considerations are followed in this case. The appellant is seeking to reopen his previously denied claim for entitlement to service connection for a heart disorder. In this regard, the Board notes that the Court held in Kent v. Nicholson, 20 Vet. App. 1 (2006), that VA must notify a claimant of the evidence and information that is necessary to reopen his or her claim and VA must notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought by the claimant. Moreover, the Court stated that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. In such cases, the Court in Kent stated that the VCAA requires the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Board notes that following receipt of the appellant's October 2007 claim to reopen his claim seeking service connection for a heart condition (see VA Form 21-4138), a December 2007 notice letter was sent to the Veteran. While this letter discussed new and material evidence, this discussion was isolated to other claims, and not the Veteran's heart condition claim. The letter made no mention of the fact that service connection for angina and early repolarization had been finally denied by the RO as part of an April 1995 rating decision. The letter also failed to look at the bases for the April 1995 denial. The letter also did not sufficiently address what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous April 1995 denial. As such, in an effort to afford the appellant due process, the Veteran should be provided a corrective VCAA notice letter in compliance with the requirements under Kent. Pertaining to his claim for an initial compensable rating for his service-connected right ear hearing loss, as part of a July 2010 VA Form 21-4138, the Veteran expressed his thoughts that a compensable rating was warranted for his right ear hearing loss, as he wore a hearing aid. He added that a VA physician had told him his disorder made it hard for him to "function well in daily living activities." The Board also notes that the Veteran was last afforded a VA audio examination in January 2008, which addressed his service-connected right ear hearing loss for which he now seeks a compensable initial rating. This was almost five years ago. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995). In this instance, it appears to the Board that the January 2008 VA audio examination is stale as it was conducted almost five years ago, and the Veteran asserts that his disability has worsened. The Board finds that a thorough and contemporaneous medical audio examination, that takes into account the records of prior medical treatment, should be conducted so that the disability evaluation concerning the Veteran's right ear hearing loss will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The appellant has not been afforded a VA examination in connection with his claims seeking service connection for hypertension and a stroke. A VA examination must be provided when (1) there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury or disease occurred in service; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006); 38 C.F.R. § 3.159(c)(4) (2012). In this case, service treatment records reflect that elevated blood pressure readings (i.e. diastolic pressure above 90 mm.) were noted in April 1979. For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Hypertension has been diagnosed subsequent to service in 2005. The clinical evidence of record also establishes that the Veteran suffered a cerebrovascular accident (CVA) in 1998. The Board notes that hypertension is a risk factor for a CVA. The record does not contain an opinion as to whether the current hypertension may be dissociated from the elevated blood pressure readings noted in service, and whether disability due to a CVA in 1998 may be dissociated from the Veteran's hypertension. For these reasons, the Board concludes that VA has not fulfilled the duty to assist the appellant in this case by affording him an examination to obtain a nexus opinion in this regard. In light of the factors noted above, the Board concludes that, in this case, a VA examination is needed to render an informed decision on the claim. 38 C.F.R. § 3.159(c)(4). Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran with appropriate notice of the VA's duties to notify and to assist, particularly in compliance with Kent. Specifically, he must be notified that his claim for service connection for a heart disorder was most recently last finally denied by the RO in April 1995, and that new and material evidence is needed to substantiate the claim. The appellant should be given notice of the bases for the prior final denial, namely the April 1995 RO decision, and what would constitute new and material evidence. These bases included findings that while the Veteran was treated in service for chest pain or possible angina, no chronic condition was shown as part of the service treatment records. The RO also found that early repolarization is considered a diagnostic finding, and was not, by itself, a disability. The Veteran should also be notified as to the evidence needed to substantiate the elements for entitlement to service connection for a heart disorder that are still lacking. 2. The RO/AMC should arrange for the Veteran to be afforded a VA audio examination to ascertain the severity and manifestations of his service-connected right ear hearing loss. The claims file must be made available to the VA examiner, and the examiner should review the file prior to the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner should also discuss the effect of the Veteran's right ear hearing loss disability on his occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 477, 455-56 (2007) (recognizing that, because an extraschedular rating for hearing loss may be appropriate, VA examiners should comment on any functional effects of a hearing disability). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for a VA examination to determine whether current hypertension and/or residuals of a cerebrovascular accident, are etiologically related to service. The claims file must be made available to the VA examiner, and the examiner should review the file prior to the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to provide an opinion as to the following: * Whether it is at least as likely as not that current hypertension, and/or disability due to a cerebrovascular accident in 1998, is related to military service, to include elevated blood pressure readings noted in April 1979? * Whether it is at least as likely as not that disability due to a cerebrovascular accident in 1998 is related to current hypertension? Complete rationale must be provided for the opinions offered. 4. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After undertaking any other development deemed appropriate, the RO/AMC should readjudicate the issues on appeal. In so doing, concerning the right ear hearing loss initial increased rating claim, the RO/AMC should also consider whether "staged" ratings are appropriate in light of Fenderson v. West, 12 Vet App 119 (1999). If the benefits sought are not granted in any respect, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs