Citation Nr: 1301550 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-39 755 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the right ankle. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1994 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in San Diego, California. The case comes to the Board from the RO in St. Petersburg, Florida. The Board notes that the Veteran requested a video hearing before a Veteran's Law Judge. However, the Veteran failed to appear for his hearing. Therefore, his request is deemed withdrawn. 38 C.F.R. § FINDINGS OF FACT 1. Right ankle DJD was not characterized by marked limited motion. 2. The Veteran was does not have a hearing loss disability. 3. Hypertension was not shown to have onset during, or been caused or made worse by, service, nor was it shown to have been present within one year of service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for DJD of the right ankle are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). 2. The criteria for service connection for a bilateral hearing loss disability were not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). 3. The criteria for service connection for hypertension were not met. . 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA 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 with 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 and 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). The notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the duty to notify was satisfied by a February 2008 letter, sent prior to the rating decision which is appealed herein, which explained how VA could assist the Veteran with obtaining evidence in support of his claims. It also explained what the evidence needed to show in order to establish service connection for a claimed disability and how VA establishes ratings and effective dates for service connected disabilities. The Veteran's claim for a higher initial rating for his right ankle disability arises out of the grant of service connection for that disability. In such cases, a new VCAA letter is not required. See VAOPGCPREC 8-2003. The Veteran was provided with a statement of the case (SOC) in September 2009 which addressed the criteria for rating his right ankle disability. The Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Evidence of record includes service treatment records and VA treatment records. The Veteran was provided with examinations of his hearing and his right ankle. The Veteran contended that these problems got worse, and he was provided with new examinations to address their current severity. However, he failed to attend the examinations without good cause, so current information about the status of his right ankle and his hearing could not be obtained. He was not afforded an examination with respect to his claim that he has hypertension that is related to service. However, such an examination is unnecessary because there is no competent and credible evidence suggesting a possible relationship between the Veteran's hypertension and his military service. 38 U.S.C.A. § 5107A(d). The Board thus finds that no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of these claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Initial Rating The Veteran contends that the symptoms of his right ankle disability are worse than are contemplated by the 10 percent rating for that disability. The Veteran contends that he has marked limited motion of the ankle. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not materially changed and a uniform evaluation is warranted. The Veteran's right ankle disability is rated pursuant to 38 C.F.R. § 4.71a, diagnostic code 5271. A 10 percent rating applies for moderate limited motion of the ankle and a 20 percent rating applies for marked limited motion of the ankle. Higher ratings for ankle disabilities require the presence of ankylosis, which is not shown in this case. See diagnostic code 5270. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown , 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The Veteran's right ankle was examined in May 2008. The Veteran reported that he had a pulling painful sensation localized on the lateral aspect of the right ankle and over the distal fibula laterally. This occurs immediately with running, after about 30 minutes of standing, or sometimes walking down stairs. If he sits with crossed legs putting pressure on the lateral aspect of the ankle he has immediate pain. His ankle pain is better with repositioning and stopping the activity that caused the pain. He did not take any medication for his ankle pain. Heat, ice, and Icy Hot all help his ankle pain. The Veteran's ankle pain does not affect his employment, because he works at a desk type job. The Veteran avoids running ,jogging, and sports because of right ankle pain. He avoids walking on inclines. He avoids doing ankle and leg exercises at the gym. The Veteran had a normal gait. He moves quickly and easily and was in no distress. He did not use any assistive devices for walking. There was some very mild swelling on the anterolateral aspect of the ankle. There was no redness. There was tenderness to palpation. The right ankle was stable when stressed in an anterior posterior, inversion, an eversion manner. There was no crepitus at the tendon sheath. Range of motion showed 17 degrees of dorsiflexion (normal is 20) and 37 degrees of plantar flexion (normal is 45). There were no objective manifestations of pain and no additional limitations after repetitive motion. The diagnosis was traumatic arthritis of the right ankle. In his notice of disagreement in February 2009 the Veteran asserted that he had limited motion of the right ankle. On his VA Form 9 in October 2009 the Veteran asserted that he had marked limited motion of the ankle, constant pain, instability, and his ankle would sometimes buckle. VA treatment records show complaints of right ankle pain. The Veteran was scheduled for reexamination of his ankle in 2011 but he cancelled the examination because he had moved. He was scheduled for a new examination at his new location, but he cancelled because he had travel difficulty. He was rescheduled, but failed to attend the rescheduled examination with no explanation. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, a claimant's failure to report for the examination in conjunction with an original compensation claim shall result in the claim being rated on the evidence of record. 38 C.F.R. § 3.655. Insofar as the Veteran failed without good cause to attend the 2011 examination, his right ankle disability must be rated based on the evidence of record. That evidence does not support a rating in excess of 10 percent. The limitation of motion noted at that May 2008 VA examination was no more than moderate, with dorsiflexion reduced by three degrees and plantar flexion reduced by eight degrees. This is not a significant enough limitation to be considered marked. Moreover, while the Veteran complained of instability of his ankle and giving way, objective testing did not show any instability of the right ankle. Although the Veteran contended that the limitation of motion of his ankle was "marked," and it was unstable, this was not shown on objective testing in 2008, and the Veteran failed to attend a more recent examination. The Veteran did not indicate the actual range of motion, in degrees, of his ankle, as would be necessary to determine whether any limitation was marked in nature. The Veteran's own opinion that his ankle range of motion was markedly limited is unsupported by any objective measurement. The only measurement of ankle range of motion of record showed a rather minor limitation in May 2008. Subjective complaints of instability were not confirmed by examination and therefore cannot be verified. The criteria for a rating higher than 10 percent for DJD of the right ankle were not met. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 11 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). The Veteran has not been hospitalized for his right ankle since service and it does not affect his employment. His symptoms are contemplated by the rating schedule. Service connection The Veteran contends that he has bilateral hearing loss and hypertension as a result of his military service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including organic diseases of the nervous system and hypertension, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Bilateral hearing loss disability For the purpose of applying the laws administered by the V.A., hearing impairment is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of these thresholds 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. Service treatment records show normal hearing during service, including shortly before separation. The Veteran was afforded a VA audiological examination in May 2008. At that time he related that he was exposed to noise in service including explosives, trucks, generators, and grenade launchers. He denied post-service noise exposure. He reported the presence of tinnitus, for which he is service connected. Pure tone testing showed right ear auditory thresholds of 15, 15, 20, 25, 25 at 500, 1000, 2000, 3000, and 4000 Hertz respectively. Average decibel loss was 21.25. Left ear auditory thresholds were 15, 10, 15, 15, 20, 15 at 500, 1000, 2000, 3000, and 4000 Hertz respectively. Average decibel loss was 15. Speech discrimination was 100 percent bilaterally. The Veteran did not meet the criteria for a hearing loss disability for VA purposes. In his February 2009 notice of disagreement, the Veteran reported that he turns the volume up loud on his cellular telephone and was told by someone that he was on the verge of needing hearing aids. On his VA Form 9 dated in October 2009 the Veteran contended that the VA examiner who performed the May 2008 testing told him that he was on the verge of needing hearing aids. The Veteran was scheduled for a new VA hearing examination, but he cancelled the examination because he had moved. He was rescheduled at his new location, but cancelled the examination due to transportation difficulties. He was again rescheduled, but he failed to attend the examination without providing any explanation. As such his claim must be rated on the evidence of record. 38 C.F.R. § 3.655. Service connection for bilateral hearing loss is denied because there is no evidence of a current hearing loss disability. Absent a current disability, there is no basis for service connection. Hypertension The Veteran's service treatment records show normal blood pressure at enlistment (120/80) and at discharge (134/78). There is no documentation of hypertension within one year of service. Current treatment records show a diagnosis of hypertension, but do not give the onset date. On his notice of disagreement dated in February 2009 the Veteran wrote that he was receiving treatment for hypertension. On his VA form 9 dated in October 2009, the Veteran contended that his military occupational specialty caused him to develop hypertension. There is no competent evidence that hypertension is related to service. Blood pressure was normal in service and there is no evidence of high blood pressure within a year after service. While the Veteran espouses the bare contention that military service somehow caused him to develop hypertension later in life, the Veteran lacks the training and expertise necessary to provide a competent opinion regarding the etiology of his hypertension. No medical professional has related the Veteran's hypertension to his service. There is no basis for service connection for hypertension. His own opinion of a relationship to service is not based on any factual predicate and is not competent. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable with respect to the Veteran's claims because the preponderance of the evidence is against the claims. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. Continued on next page ORDER An initial rating in excess of 10 percent for DJD of the right ankle is denied. Service connection for bilateral hearing loss is denied. Service connection for hypertension is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs