Citation Nr: 1301620 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 06-34 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, diagnosed as degenerative joint disease. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for a right knee disability, diagnosed as degenerative joint disease. 4. Entitlement to service connection for a left knee disability, diagnosed as degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran had active service with the Army, from February 1970 until January 1972. He also had service in the Army Reserve National Guard, with active duty from January 2004 until February 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2010, the Board remanded the claims for additional development and adjudicative action. The case has been returned to the Board for further appellate review. When the case was previously before the Board, one of the issues was entitlement to service connection for tinnitus. In a June 2012 rating decision, the RO awarded service connection for tinnitus. Thus, this issue is no longer part of the current appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (notice of disagreement following denial of a particular claim for service connection cannot be construed as a notice of disagreement following the granting of service connection for that claim); Hamilton v. Brown, 4 Vet. App. 528 (1993)(en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (a notice of disagreement ceases to be valid if the RO grants the benefit sought on appeal, or the veteran withdraws the appeal). The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. The issues of entitlement to service connection for right knee and left knee disabilities, diagnosed as degenerative joint disease, 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 injured his back during service from January 2004 to February 2005 and degenerative changes were found by x-ray evidence within one year following service discharge. 2. The preponderance of the evidence is against a finding that the Veteran has bilateral hearing loss to an extent recognized as a disability for VA purposes. CONCLUSIONS OF LAW 1. A lumbar spine disability, diagnosed as degenerative joint disease, was incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. A bilateral hearing loss disability was not incurred in or aggravated by service, and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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). The Veteran was provided with VCAA notice in an April 2005 letter. See letter. This letter informed him of what evidence VA would obtain, what evidence he was expected to provide, and of what assistance VA could provide in obtaining evidence. This letter did not, however, inform the Veteran of how disability evaluations and effective dates are assigned prior to the August 2005 rating decision on appeal. However, the Board finds there has been no prejudice to the Veteran for two reasons. One, as to the low back disability, the Board is granting the claim, and the RO will then assign an effective date and disability evaluation, which the Veteran can appeal. As to hearing loss, as the claim is being denied, the Board is not assigning an effective date or evaluation for this disability. Two, in an August 2007 letter, VA informed the Veteran of how VA determines the effective date and evaluation assigned. See letter. After this letter was sent, VA readjudicated the claims in a May 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case is sufficient to cure a timing defect). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of his claims. The Veteran's service treatment records have been obtained to the extent possible. VA was unable to obtain treatment record from the Veteran's period of service between 2004 and 2005. The Veteran was properly informed of VA's inability to obtain these records, and he submitted some records from that period of service. VA obtained VA treatment records. In September 2010, the Board remanded these claims for additional development and adjudicative action. Specifically, the Board asked that the RO (through the AMC) do the following: (1) attempt to verify the Veteran's periods of active duty for training and inactive duty training; (2) contact the Veteran to request that he inform VA of the VA facilities where he has received treatment; (3) obtain VA treatment records from the Tampa and Bay Pines facilities; (4) provide the Veteran with VA examinations, which included opinions as to the likely etiology of any current disability found; and (5) readjudicate the issues. The RO completed all of these actions, except the VA examination was lacking as to the claims for service connection for right and left knee disabilities (which will be discussed in the Remand portion of the decision). For example, VA contacted the Veteran and the proper facilities to determine the Veteran's periods of active duty for training and inactive duty training. The Board notes that the training the Veteran was called upon to complete, excluding the period from January 2004 to February 2005, involved state duty and not federal duty. Thus, such training would not apply to the Veteran's claims for service connection. Ramos v. Shinseki, 2013 WL 29786 (C.A.Fed.) (January 2013) citing Perpich v. Dep't. of Defense, 496 U.S. 334, 345 (1990); Clark v. United States, 322 F.3d 1358, 1366 (Fed.Cir.2003). VA also contacted the Veteran as to where he had received VA treatment, and it obtained the VA treatment records from the Tampa and Bay Pines facilities. It provided the Veteran with examinations and obtained medical opinions in December 2010 (examination for spine) and May 2012 (audiological evaluation). The Board finds that the examiners addressed the necessary clinical findings and provided opinions on the two disabilities being decided herein. Thus, the examinations provided are adequate for rating purposes. Lastly, the RO readjudicated all the claims in May 2012. The Board finds that with respect to the claims being decided, the RO has substantially complied with the Board's September 2010 remand instructions. The Veteran has not indicated that there are any other outstanding records that need to be obtained. Therefore, VA may proceed with the consideration of his claims. Analysis Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). For certain chronic disorders, including sensorineural hearing loss (an organic disease of the nervous system) and arthritis (degenerative joint disease), service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Impaired hearing is considered a disability for VA purposes 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Lumbar spine disability The Veteran attributes the onset of the lumbar spine disability to his period of service from January 2004 to February 2005. Records from that period of service show that the Veteran complained of low back pain in December 2004, which he reported began after he was reaching for something and felt a pop in his low back. In the questionnaire he completed within a couple of weeks before being discharged, he reported having back pain at that time, which was more than a month after he first complained of back pain. A March 2005 VA MRI of the lumbar spine shows an impression of degenerative changes, which were most significant at L4-L5. After having carefully reviewed the evidence of record, the Board finds that the evidence supports the award of service connection for degenerative changes of the lumbar spine. As noted above, degenerative changes (also known as degenerative joint disease and arthritis) is a chronic disease and if manifested to a compensable degree within one year following service discharge, it can be determined to have been incurred during service. The Board finds that this applies to the current case. The Veteran was diagnosed with degenerative changes one month following service discharge, and finds that it is reasonable to conclude that the arthritis existed while the Veteran was in service during this period of time. Resolving any reasonable doubt in favor of the Veteran, entitlement to service connection for degenerative changes of the lumbar spine is granted. The Board is aware of the December 2010 VA examiner's opinion that he did not feel that the Veteran had injured his back in service severe enough to cause a chronic disability. The Veteran was diagnosed with a chronic disease within one year following service. It is possible that the injury in service did not cause the degenerative changes demonstrated in March 2005; however, that does not take away the fact that a chronic disease process was diagnosed within one year following the Veteran's service discharge in February 2005. Thus, service connection for degenerative changes of the lumbar spine is granted. Bilateral hearing loss disability The Veteran submitted his claim for service connection for bilateral hearing loss disability in March 2005, which he appears to attribute to the period of service from January 2004 to February 2005. In reference to the Veteran's hearing loss claim, his service treatment records from his Army service do not indicate any hearing loss or complaints of, or treatment for, hearing loss or tinnitus. The Veteran was seen in March 2005 for a consultation by audiology. See March 24, 2005, VA treatment record. He reported noticing a gradual hearing loss over the past three months and stated that his hearing was decreasing in the left ear. He reported noise exposure in service, but noted he always wore ear protection. The examiner found that the Veteran's hearing was within normal limits in the right ear from 250 Hertz to 8000 Hertz. As to the left ear, the examiner wrote that it was "undetermined." The audiologist explained that the Veteran's responses were inconsistent when initially elevated. She added that while she received better reliability after repeated re-instruction, overall reliability testing was poor. The same facts were reported in a May 2005 audiology consultation. See May 9, 2005, VA treatment record. This time, the audiologist noted that she explained to the Veteran that VA needed to determine the level of his hearing loss before it could treat it. In June 2005, when the Veteran's hearing was tested again, the audiologist wrote that the Veteran's hearing was within normal limits in the right ear and that the Veteran had "[e]xcellent word recognition." See June 3, 2005, VA treatment record. The audiologist wrote that the initial run of pure tone testing in the left ear suggested "moderate-severe hearing loss." However, the audiologist noted that at one point during the examination when he went to reinsert the earphone, "all or part of a yellow foam ear protector was observed in the patient's left ear canal. The patient offered no explanation as to why this was in his ear." Repeat testing revealed "mild high frequency hearing loss" with "[e]xcellent word recognition." In October 2005, a VA internist opined that the Veteran's current condition was, as likely as not, related to his in-service aircraft noise exposure. The Board remanded the claim to provide the Veteran with a VA audiological evaluation to determine whether he has a bilateral hearing loss disability for VA purposes. The audiological evaluation was provided in May 2012. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 25 LEFT 20 20 25 25 20 Speech recognition was 98 percent in both ears. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the award of service connection for bilateral hearing loss disability. Specifically, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a bilateral hearing loss "disability" for VA purposes based upon the May 2012 audiological evaluation and the other audiological evaluations. 38 C.F.R. § 3.385. While the Board is aware that testing in June 2005 revealed a finding by the audiologist that the Veteran had "mild high frequency hearing loss" in the left ear, the Board finds that it is outweighed by the May 2012 audiological evaluation results, wherein the examiner provided the specific numeric values for the Board to determine whether the Veteran's hearing loss met the criteria for a hearing loss disability under 38 C.F.R. § 3.385. Additionally, as a result of the multiple reports by audiologists of the Veteran's lack of reliability during audiologist testing, and the fact that the Veteran had a plug in his left ear when undergoing testing in June 2005, the Board is unwilling to accept a cursory diagnosis of mild high frequency hearing loss as evidence of a current disability. Actually, even if the Board accepted that the Veteran had mild high frequency hearing loss on that date, the preponderance of the evidence is against a finding that he has a bilateral hearing loss disability for VA purposes. Thus, the claim for service connection for bilateral hearing loss disability is denied. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that the VA's and the United States Court of Appeals for Veterans Claims' 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 and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board notes that at no time during the appeal has the Veteran been diagnosed with sensorineural hearing loss. The Veteran has stated that his decreased hearing started during his period of service from 2004 to 2005. However, the Veteran's statements are not competent to demonstrate that any decreased hearing acuity he experienced meets the requirements of 38 C.F.R. § 3.385. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained medical practitioner. As a lay person, the Veteran is not competent to make a determination that he has had a diagnosis of bilateral hearing loss for VA purposes which is related to military service at any point since he filed his claim. Accordingly, the competent evidence of record shows that the preponderance of the evidence is against a finding that the Veteran has a bilateral hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385, which is related to military service at any point since he filed his claim. As such, service connection for bilateral hearing loss disability is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a lumbar spine disability, diagnosed as degenerative joint disease, is granted. Entitlement to service connection for a bilateral hearing loss disability is denied. REMAND The Board finds that additional development is warranted in connection with the claims for service connection for right and left knee disabilities. In the December 2010 VA examination report, the examiner stated that the December 2010 bilateral knee radiographs were consistent with a finding of osteoarthritis, which he wrote would not have been caused by or resulted from or aggravated by the Veteran's active military service. However, this opinion does not take into account the fact that June 2003 x-rays of the left knee show a diagnosis of mild degenerative change and June 2001 and September 2003 x-rays of the right knee show a diagnosis of degenerative changes. Thus, prior to the Veteran's period of service beginning in January 2004, he had been diagnosed with degenerative changes in both knees. Therefore, the issue is whether such disability was aggravated beyond the natural progression of the disease process during this period of service. Therefore, the Board will request a new examination with the examiner addressing such question. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA joints examination. The claims folder must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner is informed of the following facts: * Knee pain and a reported tear of the cartilage of the left knee noted in service medical records dated in December 1970 and February, May and June 1971. * June 2001 VA x-rays of the right knee show osteoarthritic degenerative changes with narrowing of the patellofemoral articulation and presence of a loose body in the anterior knee compartment. See Volume 2. * June 2003 VA x-rays of the left knee show no acute fractures or dislocations seen. There was mild narrowing of the knee joint space. Mild flattening of the tibial plateaus was demonstrated. There was minimal osteophytic spurring. The impression was, "Mild degenerative change, which has minimally progressed since the previous examination performed in 1998. See Volume 2. * August 2003 VA x-rays of the right knee show no evidence of acute bony injury. Small spurs projected from the margins of the articular surfaces of the right knee. Moderate sized spurs projected from the anterior margin of the patella. There was narrowing of the femoropatellar joint space. It was noted there was a possibility of a loose body within the joint space of the right knee. There was some osteoporosis of the visualized bony structures. The impression was, "Degenerative changes with narrowing of the femoropatelar joint space." See Volume 2 * The Veteran served on active duty from January 2004 to February 2005. * February 2005 VA x-rays of the left knee show no obvious acute fractures or dislocations. There was moderate narrowing of the knee joint space, particularly the medial compartment. There was some flattening of the tibial plateaus with osteophytic spurring. See Volume 2. * A June 2007 VA MRI of the right knee shows impressions of tricompartmental osteoarthritis with high-grade chondromalacia in the medial and patellofemoral compartments and a degenerative tear of the medial meniscus. The full report is part of the December 2010 VA examination report in Volume 4. * A June 2007 MRI of the left knee shows impressions of oblique undersurface tear of the posterior horn and body of the medial meniscus, a horizontal tear of the anterior horn, body, and posterior horn of the lateral meniscus, and tricompartmental osteoarthritis. The full report is part of the December 2010 VA examination report in Volume 4. * While the Board has laid out some of the relevant facts, it requests you review the claims folder for a more complete picture of each of the knees. Following review of the claims file, the above facts, and examination of the Veteran, the examiner is asked to express an opinion on the following questions: (i) The Board finds as fact that by the time the Veteran entered the period of service from January 2004 to February 2005, he already had degenerative changes in the right knee, as evidenced by the June 2001 and August 2003 x-rays. In other words, a right knee disability pre-existed this period of service. Accepting this fact, the examiner is asked to provide an opinion on whether the Veteran's pre-existing right knee disability of degenerative changes permanently increased in severity during the period of service from January 2004 to February 2005. Please state upon what facts and medical principles the opinion is based. (ii) The Board finds as fact that by the time the Veteran entered the period of service from January 2004 to February 2005, he already had degenerative changes in the left knee, as evidenced by the June 2003 x-rays. In other words, a left knee disability pre-existed this period of service. Accepting this fact, the examiner is asked to provide an opinion on whether the Veteran's pre-existing left knee disability of degenerative changes permanently increased in severity during the period of service from January 2004 to February 2005. The examiner should also address whether any current knee pathology is related to symptoms of knee pain and a reported tear of the cartilage of the left knee noted in service medical records dated in December 1970 and February, May and June 1971. Please state upon what facts and medical principles the opinion is based. 2. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). This claim must be afforded expeditious treatment. The law requires that all claims 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