Citation Nr: 1300896	
Decision Date: 01/09/13    Archive Date: 01/16/13

DOCKET NO.  09-18 715A	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a disorder causing bilateral ear pain.

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

3.  Entitlement to service connection for stomach disorder, claimed as H. pylori.

4.  Entitlement to a higher rating for right hip acetabulum joint degenerative arthritis, rated as 10 percent disabling prior to March 31, 2009 and as 30 percent disabling from March 31, 2009. 

5.  Entitlement to a higher rating for limitation of right hip external rotation, currently evaluated as 10 percent disabling.  

6.  Entitlement to a higher rating for left hip degenerative changes, currently evaluated as 10 percent disabling.  



ATTORNEY FOR THE BOARD

C. Lawson, Counsel


INTRODUCTION

The Veteran served on active duty from October 1987 to November 2007.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2008, July 2010, and January 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA).  Regarding issues 1-3, a notice of disagreement was received in January 2009, a statement of the case was issued in June 2009, and a substantive appeal was received in June 2009.  Issues number 1-3 were remanded to the RO in January 2011 for further development.

In July 2010, the RO increased the Veteran's disability rating for right hip acetabulum joint degenerative arthritis from 10 to 30 percent, effective from June 9, 2009, the date of a private medical record, and increased the rating for left hip degenerative changes from noncompensable to 10 percent, effective immediately following service discharge.  In January 2011, it added a 10 percent rating for limitation of right hip external rotation.  The Veteran disagreed with those decisions in February 2011.  A statement of the case has not been issued.  Under Manlincon v. West, 12 Vet. App. 238 (1999), these issues must be remanded to the RO for issuance of a statement of the case.  

The Board notes that the Veteran claimed and has been denied service connection for H. pylori.  The Veteran's service treatment records contain reference to H. pylori as well as dyspepsia and peptic ulcer disease.  In light of Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009), and Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) the Board has recharacterized the Veteran's claim as service connection for a stomach disorder claimed as H. pylori.  

The issues of service connection for a stomach disorder claimed as H. pylori and right ear hearing loss disability and higher ratings for the service-connected right and left hip disabilities 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 currently diagnosed disorder, other than her already  service-connected temporomandibular joint syndrome, which is causing ear pain.  

2.  The Veteran does not have a left ear hearing loss disability.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for a disorder causing ear pain are not met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

2.  The criteria for service connection for left ear hearing loss disability are not met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).

The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

Regarding the service connection issues being decided on appeal, the RO provided the Veteran adequate with notice by letter dated in January 2011.  The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The letter also advised the Veteran of the manner of assigning disability evaluations and effective dates, as required by Dingess.  While the notice was not provided prior to the initial adjudication, it was followed by readjudication, curing the timing defect.  Prickett v. Nicholson, 20 Vet. App. 370 (2006).

VA also has a duty to assist a claimant under the VCAA.  VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for the disabilities being decided in 2007; and afforded the Veteran the opportunity to give testimony before the Board.  All known and available records relevant to the issues addressed on the merits in this decision have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.  

VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time.  

Pertinent criteria

The issues before the Board involve claims of entitlement to service connection.  Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  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).  Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such organic diseases of the nervous system (including sensorineural hearing loss), are presumed to have been incurred in 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.  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 VA compensation and pension purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 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 Veteran appeals the RO's denials of service connection for a disorder causing ear pain and for left ear hearing loss disability.  She feels that she has these disabilities and that they started in or are related to service.  Service connection has already been granted for temporomandibular joint syndrome and for tinnitus.

On VA examination in October 2007, the Veteran complained of intermittent ear pain, exacerbated by movement and chewing.  Her ears had normal external auditory canals and tympanic membranes, except for a perforated left eardrum.  There was no evidence of cholesteatoma or of fluid.  She had pain to palpation along her right temporomandibular joint.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
15
20
10
25
15

The speech recognition score, using the Maryland CNC test, was 96 percent in the left ear.  The impressions were normal hearing, and right temporomandibular joint pain.  The examiner felt that the Veteran's right ear pain was consistent with temporomandibular joint pain.  He felt that the Veteran had had loud noise exposure, but noted that her audiometric threshold was still in the normal limits, and that she showed no evidence of mixed hearing loss.  Ear examination that day was normal.  

A VA dental examination was conducted in December 2007, for a claimed temporomandibular joint disorder.  The Veteran asserted that for 10 years, she had had ringing in her ears, and that for the last 7, she had pain, ringing, jaw locking, ear popping, and ear pain.  A doctor had not diagnosed temporomandibular joint disorder.  On dental examination, her mandible and maxilla revealed normal findings.  Examination of her ramus and palates showed no abnormal findings.  Examination of her temporomandibular joint articulation revealed limited motion of interincisal range of more than 40 mm.  Range of lateral excursion right and left was more than 4 mm.  The diagnosis was at least as likely as not TMJ.  The subjective factors were the Veteran's history, and the objective factor was medial pterygoid muscle tenderness.  The examiner stated that the Veteran had no pain, which you would expect with TMJ.  

Based on the evidence, the Board concludes that service connection is not warranted for a disorder causing ear pain.  Service connection is already in effect for temporomandibular joint syndrome which evidence shows is causing complaints of ear pain.  There is no other currently diagnosed disorder which is shown to be causing ear pain.  As a current disorder other than temporomandibular joint syndrome and causing ear pain is not shown, service connection cannot be granted for a disorder causing ear pain.  The law indicates that in the absence of a current disability, service connection cannot be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992).  

Next, although the Veteran alleges being exposed to loud noises in service, the Board finds that service connection is not warranted for left ear hearing loss disability, as such is not shown.  There is no competent medical evidence of record indicating that the Veteran has or may have a left ear hearing loss disability as defined by 38 C.F.R. § 3.385, VA regulation which defines what constitutes hearing loss disability for VA purposes.  The requirements of 38 C.F.R. § 3.385 require that there be a current hearing loss disability in order for service connection to be warranted.  Current means at any time during the course of the claim, and the claim period starts from the date following the Veteran's service discharge in November 2007.  As the requirements of 38 C.F.R. § 3.385 are not met, service connection cannot be granted for left ear hearing loss disability.  The law indicates that in the absence of a current disability, service connection cannot be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992).  The Board notes that if the Veteran's left ear hearing acuity decreases in the future, she may request that her left ear hearing loss disability claim be reopened.  


ORDER

Service connection for a disorder causing bilateral ear pain is not warranted. 

Service connection for left ear hearing loss disability is not warranted. 


REMAND

An August 2002 VA medical record which is found on Virtual VA indicates that the Veteran reported regarding gastroesophageal reflux disease/peptic ulcer disease that she was positive for H. pylori in 2012 and had been treated with antibiotics outside of VA.  This suggests that there are relevant recent non-VA medical records which remain outstanding.  Such records should be obtained as part of VA's duty to assist the Veteran with her claim.  Furthermore, the evidence shows that she was suspected to have peptic ulcer disease in service, but apparently no upper gastrointestinal series was conducted to confirm it.  Since it appears that she may have a stomach disorder now, and had symptomatology in service, another VA examination with an upper gastrointestinal series or other test sufficient to confirm or rule out peptic ulcer disease or other stomach disorder, and answer questions regarding relationship to service for any stomach disorder found, should be conducted.  There was a VA examination in 2007 which found no pathology, but the examiner did not order an upper gastrointestinal series at that time and the Veteran has reported continuing symptoms.  

Next, the Veteran seeks service connection for right ear hearing loss disability.  An examination in October 2007 contained audiometric findings for the right ear which did not meet the regulatory definition for right ear hearing loss disability which are found in 38 C.F.R. § 3.385.  However, as a consequence of the Board's January 2011 remand, a March 2011 VA medical record was obtained.  It is from an audiologist who indicated that audiometric tests were performed at that time and that they showed a mild high-frequency sensorineural hearing loss in the right ear in the 4000 to 6000 Hertz range, and that all other test frequencies were within normal limits.  The actual audiometric test results which were obtained in March 2011 are not incorporated into the claims folder.  Under 38 C.F.R. § 3.385, a right ear puretone threshold in the Veteran's right ear at that time of 40 decibels or higher would meet the definition of a right ear hearing loss disability.  Accordingly, that audiometry report should be incorporated into the Veteran's claims folder, and a medical opinion should be obtained, as indicated below, on the matter of whether such right ear hearing loss disability is related to service, if a right ear pure tone threshold of 40 decibels at 4000 Hertz is shown in that report.  

Next, the RO denied higher ratings than those sought for right and left hip disabilities in January 2011.  The Veteran filed a notice of disagreement with those determinations in February 2011.  A statement of the case has not been issued.  Accordingly, remand for issuance of a statement of the case is required.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1.  Make arrangements to obtain any additional non-VA medical records of treatment the Veteran has received for stomach disorder since service, including the records of the 2012 treatment mentioned in the August 1, 2012 VA medical record from a staff physician, found on Virtual VA.  

2.  Obtain the March 2011 VA audiometry report which showed a high frequency sensorineural hearing loss in the Veteran's right ear at 4000 to 6000 hertz.  If it shows that the right ear puretone threshold was 40 decibels or greater, obtain a medical opinion from a qualified health care provider as to whether such right ear hearing loss disability is related to the Veteran's service, including noise exposure therein.  It is imperative that the claims file be made available to the examiner for review in connection with the medical opinion.  

3.  After stomach disorder claim records development is complete, the Veteran should be scheduled for an appropriate VA examination with regard to her stomach disability claim.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  An upper gastrointestinal series or other study sufficient to confirm or rule out peptic ulcer disease or other stomach disorder should be performed unless specifically determined by the examiner to be unnecessary.  

After reviewing the claims file and examining the Veteran, the examiner should render an opinion with reasons as to whether it is at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed stomach disorder is causally related to or had its onset in service.

4.  Thereafter, readjudicate the Veteran's pending claims stomach and right ear hearing loss disability claims in light of any additional evidence added to the record.  If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

5.  Issue the Veteran a statement of the case on the matters of whether higher ratings are warranted for right acetabulum joint degenerative arthritis, limitation of right hip external rotation, and left hip degenerative changes.  If the Veteran perfects appeals of those decisions, those claims should be returned to the Board in accordance with the usual appellate procedures.  

The appellant has the right to submit additional evidence and argument on the matter or 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 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. 2012).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs