Citation Nr: 1302011 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-30 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for residuals of frostbite of the hands and feet. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, appellant's spouse ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty in the military from January 1951 to January 1953. This appeal to the Board of Veterans' Appeals (Board) is from September 2007 and August 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The September 2007 decision denied the Veteran's claim for service connection for tinnitus, and bilateral hearing loss (which had been previously denied in a final decision) on the merits. The August 2008 rating decision continued those denials, and also denied petitions to reopen service-connection claims for frostbite residuals, and a back disability. In May 2012, the Board reopened the claims for frostbite residuals, hearing loss, and a back disability, and remanded all claims for additional development. The Veteran and his wife testified at a hearing at the RO in March 2012, before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has been diagnosed as having residuals of frostbite of the hands and feet, which have been related to his active service. 2. The Veteran's current low back disability (compression fractures at T6 and T7, degenerative disc disease, and spinal stenosis). 3. Hearing loss was not shown in service or within one year of service discharge and the competent and credible evidence fails to establish an etiological relationship between the Veteran's current hearing loss and his active service, to include noise exposure. 4. Tinnitus was not shown in service or within one year of service discharge and the competent and credible evidence fails to establish an etiological relationship between the Veteran's current tinnitus and his active service, to include noise exposure. CONCLUSIONS OF LAW 1. Residuals of frostbite of the hands and feet were incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Compression fractures at T6 and T7, degenerative disc disease, and spinal stenosis were incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Bilateral hearing loss was neither incurred nor aggravated by active service and may not be presumed to be related thereto. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 4. Tinnitus was neither incurred nor aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that service connection is warranted for frostbite of the hands and feet, a back disability, bilateral hearing loss, and tinnitus. He asserts that he sustained a frostbite injury of both hands and feet in Germany in 1951, with treatment at a first aid station. He maintains a continuity of numbness symptomatology of these extremities since service. He also argues acoustic trauma from constant exposure to .50-caliber guns he had to fire for his military duties along with a continuity of hearing loss since service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, and arthritis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). It is appropriate to consider high frequency sensorineural hearing loss as an organic disease of the nervous system and, therefore, subject to presumptive service connection. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. § 3.309(a) (2012). Applicable VA regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2012). When a medical professional determines that a current condition is related to an inservice event, then it necessarily follows that the current condition was incurred during service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992) (if a medical relationship exists between current hearing loss and inservice acoustical trauma, it follows that an injury was incurred during service); Hensley v. Brown, 5 Vet. App. 155 (1993) (notwithstanding that hearing loss was not noted upon separation, a medial relationship between current hearing loss and noise exposure during service demonstrates that the veteran incurred an injury during service). The Veteran's discharge (DD Form 214) shows that the Veteran's related civilian occupation to his military occupation specialty was clerk typist. It indicates that he had service in Germany, as well as service with an infantry unit. The Veteran's service treatment reports consist solely of entrance and separation examination reports, and it appears that any other service treatment reports may have been destroyed in the 1973 fire at the National Personnel Records Center. They do not contain a record of complaints, treatment, or diagnoses involving a frostbite injury, back symptoms, hearing loss, or tinnitus. The January 1951 entrance examination report indicated that the Veteran's hearing was within normal limits. The Veteran reported a history of injuring his back. However, at that time, the examiner indicated that there "no signs now." His back and lower extremities were all assessed as normal. At his January 1953 separation examination report, the Veteran's bilateral hearing was recorded as 15/15 on the whispered voice test. He denied ear trouble. The separation examination report shows that the examiner noted "normal" ears and drums, and lower and upper extremities, with no defects recorded. The associated "report of medical history" shows that the Veteran denied ear trouble and foot trouble, and that he reported a history of a "strained back, oil field, Dec 1949" (i.e., prior to service). The Veteran filed a claim for service connection for low back strain in January 1953. No reference was made to a disability of the extremities or hearing loss. The claim was later denied on the basis that the separation examination had been essentially normal. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1973 and 2012. The first reference of the Veteran's claimed hearing loss and tinnitus is in a 1989 VA progress note wherein he complained of long-term hearing loss and tinnitus. He was noted to have bilateral moderate to severe high frequency sensorineural hearing loss. These records show complaints of back pain beginning in 1990. In October 1991, he complained of a 10-year history of foot fungus. The relevant assessment was onychomycosis. In April and May of 1992, he complained of numbness and cold in his feet, and was noted to have tinea pedis and onychomycosis, with claudication-type symptoms. In February 1994, the Veteran was hospitalized after he fell, and he reported a history of back pain for "several years." He was noted to have compression fractures at T6-T7 "most likely are old, healed fractures secondary to osteoporosis," with a less likely possibility of acute fracture with inadequate time to develop an osteoblastic response. In February 1995, the Veteran sought treatment for back pain following a fall on his back about one year before. The relevant assessment was back pain. In March 2006, he sought treatment for back symptoms, and an MRI (magnetic resonance imaging) study was noted to show spinal stenosis at L2-L3, L3-L4, and L4-L5. Beginning in May 2006, there are notations of DDD (degenerative disc disease) with acquired central canal stenosis. A number of reports, dated beginning in 2006, note complaints of foot numbness, and "pins and needles/tingling", as well as hand symptoms. A December 2008 report notes complaints that included numbness and tingling in the feet, tinnitus, and hearing loss, as well as cold intolerance related to hypothyroidism. A December 2008 audiology report shows that the Veteran had bilateral hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385. A VA examination report, dated in June 1991, shows that the Veteran reported that he had suffered frostbite to his hands and feet in 1951, with scaliness of the feet since that time. The examiner assessed a first-degree frostbite by the Veteran's own reported history; nonetheless, the examiner objectively found no cutaneous residual from the alleged frostbite. Private treatment reports, dated in June 2007, show treatment for hearing loss and tinnitus. An audiometric examination report contains charted results which appear to show that the Veteran had bilateral hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385. See Savage v. Shinseki, 24 Vet. App. 124 (noting that the Board may interpret results from a private audiometric graph if it felt it had the expertise) A private treatment report from R.S.K., M.D., dated in September 2008, shows that the Veteran gave a work history that included forklift operator, maintenance man, welder, laborer, painter, carpenter, service station attendant, insulator, and electrician lineman. The Veteran and his wife provided testimony on the issues in March 2012. He described an in-service motor vehicle accident wherein he strained/injured his back. Although the accident was rather serious, he denied receiving any medical assistance other than being given pain medication. He said the back pain was not severe at the time but that it lingered and had progressed over time. His wife recalled the Veteran being seen in 1954, and that he was diagnosed as having a ruptured disc at that time. The Veteran also described the weather conditions during his service in Germany, which involved exposure to extreme cold. He recalled having to soak his feet and hands in warm water after extended periods of cold exposure. He maintained that his hands would be numb and would peel. He added that doctors had attributed his current hand and foot symptomatology to his cold exposure. His wife testified that he had had problems with numbness of the extremities since his service discharge. As for his hearing loss and tinnitus, the Veteran endorsed noise exposure in service. He described live fire exercises with a 50-caliber machine gun, and that he was never afforded hearing protection. His wife recalled having to repeat herself because his difficulty with hearing. However, she did not clearly indicate as to when she noticed this problem or when she first noticed his hearing loss. In May 2012, the Board remanded the claims. The Board directed that the Veteran be afforded VA examinations, to obtain etiological opinions. The Board directed that, for purposes of the examination and opinion, "the examiner is directed to assume that the Veteran was exposed to loud noises in service from firing machine guns in approximately 1951-1952, although it is not known whether he experienced actual hearing loss or tinnitus at that time," that "the examiner is directed to assume that the Veteran injured his back in a 1951 motor vehicle accident, and that he has experienced back pain since that time," and that, "the examiner should similarly assume that the Veteran has experienced symptoms of pain and numbness of the hands and feet since service, which he attributes to a cold injury." In June 2012, the Veteran was afforded a VA cold injury residuals examination. The examiner indicated that the Veteran's claims file had been reviewed. The Veteran reported that he was exposed to cold weather in Germany in 1951, with coldness, pain, and redness of hands and feet at the time. He asserted that he received medical attention once per year during service, and that he was told that he had frostbite, and was given warm water. He reported ongoing sensitiveness to coldness since service, with current pain, numbness, and tingling. The diagnosis was cold injury residuals of hands and feet. The examiner explained the following: the Veteran gave a history of serving in Germany in the winter with very little protection, and that the conditions he described would have put him at great risk to develop injury to his extremities due to cold exposure. The Veteran complained of, and was evaluated for residuals of frostbite during his June 1991 VA examination. Neither the service treatment reports, nor the medical records for the first few decades after the Veteran left active duty document a history of cold injury residuals. However, as he was to assume that the Veteran had experienced symptoms of pain and numbness of the hands and feet since service along with exposure to cold in service, the examiner concluded, that "if the cold exposure is conceded, and that chronicity of the patient's symptoms since the service is conceded, then it is likely as not that the disability had its onset during the period of service." In June 2012, the Veteran was afforded a VA spine examination. The examiner indicated that the Veteran's claims file had been reviewed. The Veteran reported a history of back injury during an inservice MVA (motor vehicle accident) in 1951, with ongoing pain since that time. The diagnoses were thoracic spine compression fractures T6 and T7, thoracolumbar spine DDD, and spinal stenosis. The examiner explained the following: the Veteran's X-rays showed an old compression fracture at T6 and T7. However, it is unknown when this injury occurred, except to say it was before 2009. The Veteran states that he had an MVA in the service in 1951. The circumstances of this accident are not documented in the record, and therefore the details of the event and the type of injuries that the Veteran may have experienced cannot be reviewed. Neither the service treatment reports nor the medical records for the first few decades after the Veteran left active duty document a history of back pain. However, as he was to "assume that the Veteran injured his back in a 1951 motor vehicle accident, and that he has experienced back pain since that time," the examiner determined that it is as likely as not that the disability had its onset during the period of service. A VA audiological examination report, dated in June 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The audiological test results show that the Veteran has bilateral hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385. The examiner explained that the Veteran's service treatment records are silent for any complaints of hearing loss or tinnitus. In addition, neither hearing loss nor tinnitus were reported within one year of military discharge. The examiner also noted that the Veteran reported an extensive history of occupational noise exposure as a carpenter for 36 years without ever utilizing hearing protection. The examiner opined that the Veteran's current hearing loss is less likely that not due to military acoustic trauma and more likely than not due to the combination of age and occupational noise exposure. The examiner further indicated that the Veteran's tinnitus was not at least as likely as not (50 percent or greater probability) caused by or a result of an event in military service. The examiner explained that there are no official military notes in the claims file that would indicate complaints, treatment, or diagnosis of tinnitus while on active duty. The patient did not complain of tinnitus in service when offered the opportunity to do so. In addition, the Veteran reported a 36-year history of occupational noise exposure without utilizing hearing protection. A. Residuals of Frostbite of the Hands and Feet The Board finds that service connection is warranted for residuals of frostbite of the hands and feet. Recognition is given to the fact that there is no service medical evidence showing that either of these disabilities were incurred in service. The earliest medical evidence to show the existence of residuals of frostbite is dated in 1990, which is about 37 years after separation from service. Nevertheless, the Veteran and his wife assert ongoing symptomatology since his service, which the undersigned found credible. Further, on examination where the examiner was directed to assume that the Veteran has experienced symptoms of pain and numbness of the hands and feet since service, which he attributes to a cold injury, the resulting etiological opinion, dated in June 2012, weighs in favor of the claim. There are no competent, countervailing etiological opinions of record. Accordingly, the Board finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, service connection for residuals of frostbite of the hands and feet is warranted. B. Back Disability Service connection is also warranted for a back disability The Board acknowledges that the Veteran provided a history of injuring his back prior to entering service. However, the fact remains that the service enlistment examination specifically noted that there was no evidence of residual disability, and that his spine was found to be normal. The presumption of soundness thereby attaches. There is also no evidence to rebut that presumption. Indeed, other than his reference to back pain, there is no indication of complaints, treatment, or diagnosis of a low back disorder in service. There is also no medical evidence to show the existence of a low back disability until 1990, which is about 37 years after separation from service. However, the significant probative value is given to the fact that the Veteran initially filed a claim for service connection for low back disability immediately after his service discharge. He and his wife have also provided credible testimony of ongoing symptomatology since his service. Then, on examination where the examiner was directed to assume that the Veteran injured his back in a 1951 motor vehicle accident, and that he has experienced back pain since that time, a VA examiner determined that it was as likely as not that the Veteran's current back disability (compression fractures at T6 and T7, degenerative disc disease, and spinal stenosis) was related to his active service. There are no competent, countervailing etiological opinions of record. Accordingly, the Board finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, service connection for back disability, is warranted. C. Hearing Loss and Tinnitus The Board finds that the claims must be denied. The Veteran's service treatment records do not show any complaints, diagnoses, or treatments for hearing loss or tinnitus. The earliest medical evidence of hearing loss, or tinnitus, is dated in 2007. This is about 54 years after separation from service. The Veteran is shown to have a long post-service history of noise exposure as a carpenter, and the Board finds that the opinions in the June 2012 VA examination report are highly probative evidence against the claims, as the examiner indicated that the opinions were based on a review of the Veteran's C-file, and the opinions are accompanied by a sufficient rationale. These opinions are therefore considered to be highly probative evidence against the claims. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, there is no competent evidence to show that sensorineural hearing loss was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. C. Conclusion With regard to the claims for hearing loss and tinnitus, the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Although a lay person may be competent to report the etiology of a disability, the disabilities at issue are not the type of disorders which are susceptible to lay opinion concerning etiological cause. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issues on appeal are based on the contentions that hearing loss and tinnitus were caused by service. Neither of the claimed disorders are shown during active duty service. On the contrary, on consideration of his exposure to noise in-service along with his report of experiencing hearing loss since service, a VA examiner determined that it was less likely as not that the Veteran's hearing loss and/or tinnitus was related to his active service. The opinion of the examiner, an individual trained to assess hearing loss and tinnitus claims, far outweighs the lay opinions of the Veteran and his wife. Due consideration has been given to the Veteran's competent claim to experiencing hearing loss and tinnitus since service. The Board is fully aware that applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). However, in a merits context, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. Savage v. Gober, 10 Vet. App. 488 (1997). In this case, the Board has determined that the aforementioned VA opinion is highly probative evidence against the claim. The examiner fully considered the Veteran's assertion of continuity of symptomatology since service and still provided a negative opinion. The Board also cannot ignore the fact that the Veteran's hearing was assessed as normal at discharge, and that he made no reference to hearing loss or tinnitus at that time or when he filed his claim for compensation in 1951. Indeed, as he was clearly aware of the VA benefits system, and the need to file a claim for compensation, one would believe that the Veteran would have made reference to hearing loss and tinnitus if those disabilities were present. He has provided no explanation for this. It is also noteworthy that while she provided a history of the Veteran experiencing difficulty hearing post-service the Veteran's wife did not clearly state that the problem had existed since service, like she did with his other claimed disabilities. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that he has the claimed conditions that are related to his service. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. VCAA The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in April and October of 2007, April 2008, and November 2010. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. As an initial matter, service treatment reports are not of record. Reports from the National Personnel Records Center (NPRC), dated in July 2007 and April 2011, indicate that there are no additional service treatment records available, and that any other records that may have existed may have been destroyed in a 1973 fire. Under such circumstances, there is a heightened duty to search for medical information from alternative sources in order to reconstruct the service treatment records. Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990); Cuevas v. Principi, 3 Vet. App. 543, 548 (1992). The Board is also under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). However, the Court has rejected the argument that there should be an "adverse presumption" against VA where service medical records have been lost or destroyed while in the Government's control, including records destroyed in the 1973 fire at the NPRC. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Board is satisfied that its duty has been met and that all reasonable efforts to develop the record have been made. Prior to issuing its decision, the RO made requests to the NPRC to obtain any available service treatment records. However, the NPRC reported that no additional records could be found. In August 2007, the RO issued a memorandum in which it determined that the Veteran's personnel records are unavailable for review. In the VCAA letters, the Veteran was advised of additional sources of evidence he could identify or submit pertinent to the claims. In March 2012, the Veteran was afforded a hearing. Therefore, the Board finds that the RO has satisfied its duty to assist under Cuevas v. Principi, 3 Vet. App. 543, 548 (1992). It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. In December 2011, the RO determined that there were no records available for the Veteran from the VA Medical Center in Oklahoma City that are prior to 1973 (the Board parenthetically notes that in a December 2011 letter, the Veteran's representative stated that, in fact, the Veteran had not received treatment at the Oklahoma City VAMC prior to 1973). In April 2011, the Social Security Administration stated that it did not have any medical records for the Veteran. The Veteran was afforded a VA examination to determine the nature and etiology of his hearing loss and tinnitus. To that end, 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 examinations was adequate, as it was predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided a rationale for the opinions stated, relying on and citing to the records reviewed. Discussion of the Veteran's March 2012 Travel Board hearing also is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to hearing loss and tinnitus was identified as an issue at the hearing. Information was elicited from the Veteran concerning the onset of these conditions. Sources of evidence relevant in this regard were discussed but none were identified. In May 2012, the Board remanded these claims. The Board directed that the Veteran be afforded a VA examination for his spine, and examinations to evaluate his claims for residuals of frostbite, hearing loss, and tinnitus, to include etiological opinions. In June 2012, the requested examinations and opinions were obtained. Given the foregoing, the Board finds that there has been substantial compliance with its May 2012 remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). Simply stated, the Board finds that the service and post-service medical record provides evidence against the claims for hearing loss, and tinnitus. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for residuals of frostbite of the feet and hands is granted. Service connection for compression fractures at T6 and T7, degenerative disc disease, and spinal stenosis is granted. Service connection for hearing loss and tinnitus is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs