Citation Nr: 1306586	
Decision Date: 02/26/13    Archive Date: 03/01/13

DOCKET NO.  07-29 417	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to a disability rating greater than 10 percent for service-connected residuals of a right index finger fracture.

3.  Entitlement to a disability rating greater than 10 percent for service-connected residuals of a lacerated left hand wound, moderate damage to interosseous muscle.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU).


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Counsel


INTRODUCTION

The Veteran served on active duty from December 1940 to March 1961.  His decorations include the Combat Action Ribbon.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from December 2006 and June 2011 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, the Commonwealth of Puerto Rico.

In September 2009, the Board reopened the issue of entitlement to service connection for bilateral hearing loss and remanded it for further development.  As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the September 2009 remand orders, and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

In July 2012, the Veteran had been scheduled to testify at a RO hearing pursuant to a request made in his September 2011 Appeal To Board Of Veterans' Appeals (VA Form 9).  However, in a July 2012 statement, the Veteran withdrew his request for a hearing.  

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

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 issues of entitlement to increased disability ratings for a right index finger disability and a left hand disability, as well as TDIU, 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.


FINDING OF FACT

The competent and credible evidence does not show that the Veteran's bilateral hearing loss is related to his active service.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by service.  38 U.S.C.A. 
§§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005).
 In addition, the notice requirements of the VCAA apply to all five 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).  Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

By letter dated in August 2006,  November 2009, March 2010, July 2010, September 2010, January 2011, and October 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims.  He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain.  He was also provided with the requisite notice with respect to the Dingess requirements.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied.

Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the Veteran's claims file, which contains his service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's September 2009 remand, VA provided the Veteran with a medical examination in January 2012.  This examination contained all information needed to rate the disability.  Indeed, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale.  Therefore, this examination is adequate for VA purposes.  Thus VA has complied with the September 2009 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).
In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. 

Service connection

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303 (2012).

Service connection for certain organic diseases of the nervous system may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012).

If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996).  Most recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service.  See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA 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 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.

The failure to meet these criteria at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability.  A claimant "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service."  Hensley  v. Brown, 5 Vet. App. 155, 159-60 (1993); see 38 C.F.R. § 3.303(d) (2012); Heuer v. Brown, 7 Vet. App. 379, 384 (1995). 

The threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss.  Hensley, at 157. 38 C.F.R. § 3.385.

As a chronic condition, hearing loss would be entitled to presumptive service connection if the disease became manifest to a degree of ten percent or more within one year of separation.  38 C.F.R. §§ 3.307, 3.309.  The April 1961 VA examination noted normal hearing.  The first diagnosis of hearing loss in the record is a May 2002 VA outpatient treatment record, more than 40 years after service.  The record does not contain any earlier records of treatment for hearing loss.  Therefore, as there is no indication that the Veteran's bilateral hearing loss manifested to a degree of ten percent or more within one year after discharge, service connection on a presumptive basis is not warranted.  See 38 C.F.R. § 3.307(a)(3).

Although the Veteran is not entitled to service connection on a presumptive basis, he is not precluded from establishing service connection for bilateral hearing loss with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994).

As noted above, direct service connection requires competent and credible evidence of a current disability.  Davidson, 581 F.3d at 1316.  VA treatment records and audiology examination reports show a diagnosis of bilateral hearing loss with pure tone threshold results sufficient to qualify as an impaired hearing loss disability under 38 C.F.R. § 3.385.  Thus, the current disability requirement has been met.

The Veteran's service treatment records do not show an in-service onset of a hearing loss disability.  Instead, his hearing was found to be within normal limits (15/15) based on whispered voice tests in December 1945, December 1949, and January 1961.  The Board notes that the whispered voice test is not an assessment of hearing acuity consistent with 38 C.F.R. § 3.385.  However, his January 1961 separation examination report also included audiometric findings of pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
-
10
LEFT
0
0
0
-
10

Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units.  When converted to ISO units, the above in-service audiometric examination reflects auditory thresholds as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
-
15
LEFT
15
10
10
-
15

As noted above, the Veteran's decorations include the Combat Action Ribbon, and thus satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation.  Every reasonable doubt shall be resolved in favor of the Veteran.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  

The Veteran reported in-service noise exposure from explosions and firearm noise during his 20 years of service.  The Board concedes such noise exposure as consistent with the circumstances of his service, including combat.

The remaining question for consideration is whether the current hearing loss disability is causally due to the in-service noise exposure.  38 C.F.R. § 3.303(d).  From the evidence of record, such causal relationship has not been demonstrated.

The record does not contain a medical opinion suggesting that the Veteran's current bilateral hearing loss is related to his period of active service.  A January 2012 VA audiology opinion found that the Veteran's current bilateral hearing loss was less likely as not caused by or a result of an event in military service.  The accompanying rationale noted the significant passage of time between the Veteran's service, and added that the hearing loss could be the result of a natural aging process, post-service noise exposure, or a combination of both.  

The Board finds the January 2012 opinion of the VA examiner to be probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale.  Accordingly, the opinion is found to carry significant weight.  Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight.  See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).

The Board recognizes the Veteran's contentions that he has bilateral hearing loss as a result of his active service.  To the extent that the Veteran himself believes that his hearing loss was caused by his active service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which a nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case.  As such, there is no competent and credible nexus evidence establishing a connection between the Veteran's current bilateral hearing loss and his active service.

Alternately, service connection may be granted upon a finding of continuity of symptomatology between a current disorder and service.  38 C.F.R. § 3.303(b).   A layperson, such as the Veteran, is competent to report on the onset and continuity of observable symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  Id.; see also Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011).  In so doing, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, but may weigh this absence as a factor in determining credibility of lay evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  The Board must consider whether there is corroborating evidence or evidence suggesting that lay evidence may be mistaken or untruthful.  Kahana, 24 Vet. App. 439.  

In an October 2004 statement, the Veteran reported that his left ear hearing loss had been present since service.  This statement is not supported by contemporaneous medical evidence.  As noted above, the first diagnosis of bilateral hearing loss came more than 40 years after service.  In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since active service, may be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Moreover, this lay evidence is in direct contradiction with his service treatment records and the April 1961 VA medical examination performed one month following his separation, which shows that the Veteran did not have a hearing loss disability within the meaning of 38 C.F.R. § 3.385.  As the lay evidence of continuity of symptomatology is not corroborated by, and instead contradictory to, the objective evidence of record, continuity of symptomatology is not established.

In short, the claim of service connection for hearing loss must be denied.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Service connection for bilateral hearing loss is denied.


REMAND

The Veteran is service connected for residuals of a right index finger fracture (right index finger disability) and residuals of a lacerated left hand wound, moderate damage to interosseous muscle (left hand disability).  Unfortunately, the existing VA examinations do not appear to directly address his left hand disability.  The most recent examination in July 2012 refers to a right hand laceration wound instead.  The Board is unclear whether the symptoms of the left hand disability have been mistakenly noted as right hand symptoms or if the symptoms are properly described and the Veteran does not have any left hand symptoms.  As such, a new examination that accurately reflects the service connected disabilities is necessary.

A decision on one or both of these claims would have a "significant impact" upon the Veteran's claim for TDIU.  That impact in turn could render any review of the decision on the TDIU claim meaningless and a waste of appellate resources.  Therefore, these claims are inextricably intertwined and the TDIU claim must also be remanded.  See Henderson v. West, 12 Vet. App. 11, 20 (1998), Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO/AMC shall schedule the Veteran for a VA hand examination to determine the current nature and severity of his right index finger and left hand disabilities.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted and the results reported in detail.

After review of the claims file and examination of the Veteran, the examiner should comment as to:

a.  The limitation of motion caused by the right index finger disability, including resulting limitation of motion of other digits.

b.  The extent to which the Veteran's right index finger disability interferes with overall function of the hand.

c.  Whether such limitation of motion and/or function is equivalent to amputation of the right index finger.

d.  The limitation of motion caused by the left hand disability.

e.  The effect these disabilities have on the Veteran's employability.

2.  The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required.  If further action is required, it should be undertaken prior to further claims adjudication.

3.  The RO/AMC will then readjudicate the Veteran's claims.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure.  The Veteran need take no action until he is so informed.  He 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).  The purposes of this remand are to obtain additional information and comply with all due process considerations.  No inference should be drawn regarding the final disposition of this claim as a result of this action.

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).




______________________________________________
DEMETRIOS G. ORFANOUDIS 
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs