Citation Nr: 1304022	
Decision Date: 02/05/13    Archive Date: 02/08/13

DOCKET NO.  10-42 408	)	DATE
	) 
	)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel





INTRODUCTION

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).

The Veteran served on active duty from June 1956 to June 1960.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2010 of a Department of Veterans Affairs (VA) Regional Office (RO).

The issue of entitlement to service connection for COPD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

A bilateral hearing loss disability was not shown during the Veteran's service and a current hearing loss disability is not demonstrated by the competent evidence of record.   . 


CONCLUSION OF LAW

The criteria for service connection for a bilateral hearing loss disability are not met.  38 U.S.C.A. §§ 101(24), 1112, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.304, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  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.  

An October 2009 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in a august 2010 statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran's service treatment records, personnel records, and private treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not been afforded a VA examination to determine the nature and etiology of his claimed hearing loss.  However, a VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the requirement to examine the Veteran is not triggered as the evidence of record does not meet these initial evidentiary thresholds.

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303.  

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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).  All three elements must be established by competent and credible evidence.  

Where a Veteran, who served for ninety days on active duty, develops sensorineural hearing loss to a degree of 10 percent or more within one year from separation from service, service connection may be presumed to have been incurred in service even though there is no evidence of such disease during a period of active duty. 38 U.S.C.A. § 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 the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

In an October 2009 claim for compensation, the Veteran stated that he was claiming a hearing loss disability which began in 1960.  

Service treatment records include the Veteran's June 1956 and June 1960 medical examination reports for the purpose of enlistment and separation, respectively.  Both reports reflect 15/15 on the whispered voice hearing test.  The Veteran's ears were shown to be normal in his June 1960 report of medical examination for the purpose of separation.

A September 2009 treatment note from private physician Dr. S.J. noted that the Veteran stated that he did not have hearing loss.  In his May 2010 notice of disagreement, the Veteran is shown to disagree with the April 2010 findings of the RO which denied service connection for hearing loss, however in a September 2010 statement, the Veteran stated that he did not "put in a claim" for hearing loss.  

As noted above, in order to establish service connection, the evidence of record must demonstrate an in-service disability or injury, a present disability, and a nexus between the two.  Here, the evidence does not demonstrate any of the necessary elements to establish service connection.  An in-service disability or injury is not demonstrated; there is no evidence of a  present disability; and there is no competent evidence showing hearing loss related to service.  

A current chronic disability is prerequisite for service connection.  There can be no valid claim for service connection in the absence of proof of a present disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
Not only does the evidence of record fail to demonstrate a current hearing loss disability, a September 2009 private treatment record notes that the Veteran stated he did not have hearing loss; and in a September 2010 statement the Veteran said he "did not put in a claim" for hearing loss.   

Although the Veteran is competent to describe symptoms of impaired hearing, the presence of a hearing loss disability is not capable of lay observation. See Savage v. Gober, 10 Vet. App. 488, 498 (1997); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Thus the Veteran's claim alone, which notably is inconsistent, is insufficient to establish hearing loss during or after his service.

The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a bilateral hearing loss disability is not warranted.


ORDER

Service connection for a bilateral hearing loss disability is denied.


REMAND

Additional development is necessary before the Board may decide the Veteran's claim for service connection for COPD.  

The Veteran asserts that exposure to asbestos, and paint and chemical fumes while serving as a boiler technician caused his COPD.  The Veteran is shown to have served as a boiler operator during his naval service.

The evidence of record also demonstrates, however, that the Veteran had a one pack per day smoking history for over twenty years.  See June 2008 Treatment Records of Dr. S.J.  It is feasible that the Veteran's COPD could be due to the Veteran's service, his extensive smoking history, or a combination of the two.  The evidence of record does not presently include medically competent evidence which addresses the etiology of the Veteran's COPD.

The Board is left to rely on its own lay opinion, which the Board cannot do.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding the Board may only consider independent medical evidence and may not substitute its own medical opinion).  A VA examination is needed to obtain a medical opinion which addresses the etiology of the Veteran's COPD. 

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination by an appropriate medical professional.  The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review."

The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that his COPD is related to service.  In so doing, the examiner is to specifically address the Veteran's exposure to asbestos while working as a boiler technician during active service, and his smoking history.

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

2.  Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated.  Then, readjudicate the issue on appeal.  If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond.  The case is to then be returned to the Board for further appellate review.

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


______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs