Citation Nr: 1307459	
Decision Date: 03/05/13    Archive Date: 03/11/13

DOCKET NO.  12-34 429	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to an initial evaluation higher than 10 percent for left forearm, muscle groups V and VI, residual of musculature injury.

2.  Entitlement to an initial rating higher than 10 percent for anxiety disorder (claimed as posttraumatic stress disorder).

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to service connection for a right hip disorder.

5.  Entitlement to service connection for a disorder manifested by inability to focus (claimed as impaired vision).


REPRESENTATION

Appellant represented by:	Edward M. Farmer, Attorney


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel


INTRODUCTION

The Veteran had active military service from June 2005 to July 2009.

This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  In a March 2012 rating decision, the RO granted service connection for an anxiety disorder assigning a 10 percent rating, effective February 23, 2011; but denied service connection for bilateral hearing loss, a right hip disorder, and inability to focus (also claimed as impaired vision).  The RO granted service connection for residuals of a muscle injury to the left forearm, muscle groups V and VI in a June 2012 rating decision, assigning a 10 percent rating, effective February 23, 2011.

After the case was certified to the Board, the Veteran submitted additional evidence that had not been considered by the RO.  A remand, pursuant to 38 C.F.R. § 20.1304 is not necessary, however, as the Veteran waived RO jurisdiction over the evidence.

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).

The issues of higher initial ratings for a left forearm muscle injury and anxiety disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO.



FINDINGS OF FACT

1.  Bilateral hearing loss currently shown is of insufficient severity to constitute a disability for which service connection can be granted under applicable VA regulation.

2.  In February 2013, prior to the promulgation of a decision in the appeal, the Veteran's representative submitted a written statement that the Veteran wished to withdraw his service connection claims for a right hip condition and inability to focus.


CONCLUSIONS OF LAW

1.  The Veteran does not have a bilateral hearing loss disability that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

2.  The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for a right hip disorder have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).

3.  The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for inability to focus have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1) (2010).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or SSOC.  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice and, as discussed herein, the Board has not identified any.

In February 2012, VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies.  He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim.  See 38 C.F.R. § 3.159(b)(1).  

The Board finds that the content of the letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist.  In addition, the March 2012 rating decision and November 2012 SOC explained the basis for the RO's action, and the SOC provided him with an additional period to submit more evidence.  It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices.

In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Veteran was provided with such notice in a February 2012 VA letter sent to him.

With regard to the duty to assist, VA obtained the Veteran's service treatment records and VA treatment records.  The Veteran also was afforded a VA examination in February 2012 addressing the hearing loss claim on appeal.  A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The audiometric examination was conducted by a medical professional and the examination demonstrated objective evaluations.  The examining audiologist was able to assess and record the condition of the appellant's auditory acuity.  Further, the VA examination report addressed the applicable criteria of 38 C.F.R. § 3.385.  As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra.  Therefore, the Board concludes that the appellant was afforded an adequate examination.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

Relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The February 2012 VA examination addressed the Veteran's complaints of functional impairment.  Specifically it was noted that he had difficulty when trying to communicate with others and generally talk very loud because he could not hear himself or others.  This evidence is sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). 

Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA, as to the issues decided in the present decision.  Therefore no useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran.  The Court of Appeals for Veteran Claims has held that such remands are to be avoided.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


II.  Service Connection for Hearing Loss

The Veteran contends that he has a hearing loss disability as a result of his exposure to acoustic trauma during his military service.  Specifically he indicates exposure to noise from tanks and explosions.

Service connection will be granted for a 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(a).  Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter).  

In order to establish service connection, the evidence must generally show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see generally 38 C.F.R. § 3.303.  

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, conditions or hardships of such service even though there is no official record of such incurrence or aggravation.  38 C.F.R. § 3.304(d).

Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Barr, 21 Vet. App. at 307.  Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology.  Savage, 10 Vet. App. at 496.  

The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, --- F.3d ----, No. 2011-7184, 2013 WL 628429 *5 (Fed. Cir. February 21, 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added].  For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).   

Organic diseases of the nervous system, which include sensorineural hearing loss,  are listed as chronic conditions under 38 C.F.R. § 3.309(a).  Therefore, service connection can be awarded for sensorineural hearing loss if the evidence demonstrates continued symptomatology since service under 38 C.F.R. § 3.303(b).  Sensorineural hearing loss also may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

38 U.S.C.A. § 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" when evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations.  Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011).  The Federal Circuit has held that "[l]ay 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."  Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  "Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."  Jandreau, 492 F.3d at 1377, n4.   A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  Lastly, a layperson may also be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology.  Hickson, 12 Vet. App. at 253.  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current 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).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

Turning now to the facts of this case.  The Veteran had service in Iraq and was awarded the Combat Action Ribbon for his service.  His military occupational specialty in the United States Marine Corps was Tank Crewman.  The service treatment records also show he was exposed to an improvised explosive device (IED) explosion during his service.  Therefore, acoustic trauma in service has been conceded.  The determinative issue is whether the Veteran has a hearing loss disability related to the noise exposure in service.  

To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury.  Further, a present disability must exist at some point during the claim process, and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a); McClain v. Nicholson, 21 Vet. App. 319 (2007).

The determination of whether a veteran has a ratable hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent.  38 C.F.R. § 3.385.

The Court has indicated that, "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The Court held that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss.  Hensley, 5 Vet. App. at 157.  The Court further held that 38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected.  Hensley at 159.  It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service.

The service treatment records show the Veteran's hearing was carefully monitored for any threshold shifts throughout his military service.

A June 2005 audiometric evaluation, which was used as the reference audiogram, shows that pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5M
0M
5M
5M
5M
LEFT
0M
-5M
0M
0M
5M

An August 18, 2006 audiometric evaluation shows that pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
10
5
10
LEFT
15
10
10
10
15

An August 21, 2006 audiometric evaluation shows that pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
10
15
10
LEFT
15
5
0
10
15

In February 2008, an audiometric evaluation shows that pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
10
0
10
LEFT
5
0
0
5
10

An August 2008 audiometric evaluation shows that pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
0
10
LEFT
5
0
0
10
5

Finally, an April 2009 audiometric evaluation shows that pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
10
0
0
LEFT
10
0
0
0
10

Although the treatment records shows a shift in auditory thresholds during service, none of the audiometric evaluations shows a hearing loss disability.  A May 2009 Report of Medical History also shows the Veteran denied any hearing loss.

After service, the Veteran underwent a VA examination in February 2012.  It was determined that the test results were valid for rating purposes.  The February 2012 audiogram shows that pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
5
5
LEFT
0
0
0
5
15

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear.  It was determined that use of the speech discrimination scores was appropriate for the Veteran.

As noted above, in order for service connection to be warranted for a claimed condition, there must be evidence that such disability is now present and is attributable to a disease or injury incurred during service.  See Rabideau and McClain, supra.

The clinical evidence of record indicates that the Veteran's bilateral hearing loss does not meet the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.  The absence of any evidence of any qualifying bilateral hearing loss disability for VA purposes at any time constitutes negative evidence tending to disprove the claim that the appellant incurred any such condition during his active service.  See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).

The Board has considered the Veteran's written statements submitted in support of his arguments that he has bilateral hearing loss as a result of his service.  To the extent that his statements represent evidence of continuity of symptomatology, without more, the Veteran's statements are not competent evidence of a diagnosis of hearing loss, nor do they establish a nexus between a medical condition and his military service.  Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Furthermore, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The regulation at 38 C.F.R. § 3.385 defines hearing disability for VA purposes.  That regulation prohibits a finding of hearing disability where threshold hearing levels at 500, 1000, 2000, 3000, and 4000 Hz are all less than 40 decibels and at least three of those threshold levels are 25 decibels or less.  Hensley v. Brown, supra.  The regulation also allows a finding of a hearing disability when speech recognition scores using the Maryland CNC test are less than 94 percent, but no such results are of record.

Although the Veteran has shown exposure to acoustic trauma in service and that he has complaints of present hearing loss, the audiometric testing conducted for VA, in February 2012, revealed that the Veteran's hearing in his ears does not demonstrate any pertinent level of 40 decibels or greater, or three levels greater than 25 decibels; in addition there is no speech recognition score less than 94 percent of record.  Accordingly, there is no evidence that the Veteran currently has any bilateral hearing loss disability that meets the criteria set forth in 38 C.F.R. § 3.385.  Therefore, his claim for service-connected disability benefits for bilateral hearing loss cannot be granted.

The Board recognizes the sincerity of the arguments advanced by the Veteran that he has bilateral hearing loss that is related to his military service.  It is true that a Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  However, as noted by the Court in Hensley, supra, hearing loss is measurable by objective testing.  Furthermore, such testing requires specialized equipment and training for a determination as to decibel levels at specific frequencies, as well as Maryland CNC testing, and is therefore not susceptible to lay opinions on the severity of hearing loss.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992), as to the high probative value of audiometric test results. 

While the Veteran is competent to say that he experienced hearing problems in his ears while in service and presently, he does not have the expertise to state that he met the requirements of 38 C.F.R. § 3.385; audiometric testing would be required.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009).  Thus, the Board cannot give decisive probative weight to the opinions of the Veteran as to the severity of his claimed hearing loss, because he is not qualified to offer such opinions.

For the above reasons, the Board finds that the preponderance of the evidence is against the Veteran's bilateral hearing loss claim.  Because the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, the benefit-of-the-doubt doctrine is inapplicable, and the claim on this basis must be denied.  38 U.S.C.A. § 5107(b); Gilbert, supra.  

III.  Withdrawn Issues

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing or on record at a hearing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012).  Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(c) (2012).

The Veteran's representative submitted a type-written statement via facsimile in February 2013 that the Veteran wished to withdraw his service connection claims for a right hip condition and inability to focus.  

Because the Veteran has withdrawn his appeal as to the above issues, there remain no allegations of error of fact or law for appellate consideration on those issues, and the Board does not have further jurisdiction.


ORDER

Entitlement to service connection for hearing loss is denied.

Entitlement to service connection for a right hip disorder is dismissed.

Entitlement to service connection for a disorder manifested by inability to focus (claimed as impaired vision) is dismissed.


REMAND

The Veteran is service-connected for residuals of muscle injury to the left forearm, muscle groups V and VI and assigned a 10 percent disability rating.  He presently seeks a higher initial rating for his left forearm disability.  Service treatment records document the Veteran's original injury to his left forearm in March 2008.  The Veteran also submitted a VA Form 21-4142 authorizing VA to obtain records of his arm injury on March 19, 2008 from Petersburg Hospital, Southside Regional Medical Center in Petersburg, VA.  Records from this facility are not in the claims file and are relevant to this claim.  Although the current issue is the present severity of the residuals of injury to the left arm, in assessing the appropriate disability rating under the muscle codes under 38 C.F.R. § 4.56, the history of injury is relevant to determining the severity of the muscle injury.  As the hospital records where the Veteran initially sought treatment for his left arm injury in March 2008 are relevant to the Veteran's claim, reasonable efforts must be made to obtain them.  See 38 C.F.R. § 3.159(c)(1).  

Additionally, the Veteran's representative argues that since the Veteran is service-connected for two different muscle groups of the left forearm he should be entitled to two different ratings for these disabilities.  The Veteran's representative also asserts that the most recent VA examination in November 2012 notes muscle injuries to muscle groups VII and VIII, as well, but that there is no nexus opinion as to whether these injuries are also service connected.  

Review of the November 2012 VA examination report shows that the VA examiner determined that the muscle groups VII and VIII were involved with the service-connected injury.  Specifically the examiner noted at the end of the report that evaluation indicated apparent additional involvement of muscle groups VII and VIII with regard to the Veteran's service-connected injury to the left arm musculature.  Therefore, no further opinion is necessary in this regard.  Evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, injuries to muscles of an extremity might overlap to a great extent and special rules are included for evaluating these disabilities.  Id.  As there appear to be multiple joints involved with the residuals of muscle injury to the left forearm the application of 38 C.F.R. § 4.55(e) is warranted.  

Additional records are outstanding concerning the Veteran's initial rating claim higher than 10 percent for an anxiety disorder (claimed as PTSD).  The record shows a list of appointments the Veteran had at the Vet Center from March 2010 to October 2012, but the treatment records from these visits are not in the file.  As these treatment records are pertinent to the Veteran's claim to establish a higher rating for his anxiety disorder, reasonable efforts must be made to obtain these records.

In addition lay statements from the Veteran's girlfriend submitted in February 2013 suggests a possible worsening of the Veteran's service-connected psychiatric disorder.  Specifically she noted that after a year of living with the Veteran she has gotten used to having to remind him to shower on a daily basis and that he rarely communicated cohesively.  Going to the grocery store produced severe anxiety and anger and driving also caused anxiety.  She also had observed sleep impairment in the Veteran.  Finally, she felt that the Veteran would be unable to hold a job.

The Veteran also submitted a statement that he felt the VA examiner did not understand his symptoms.  He noted that while he was in school he had difficulty focusing on his coursework and understanding assignments.  This made him panicky and caused a lot of anxiety.  He had trouble communicating and had no friends.  He also could not shower or do basic hygiene without constant reminders from his girlfriend.

The last VA examination addressing the Veteran's psychiatric impairment in February 2012 notes that the Veteran's symptoms were considered mild and that he was able to attend to the activities of daily living.

The fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination.  Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  However, the mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition.  Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007).  Given that the record demonstrates a potential increase in severity of the Veteran's psychiatric disorder since he was last evaluated in February 2012, additional examination is warranted on remand.

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.  Make arrangements to obtain hospital records from Petersburg Hospital, Southside Regional Medical Center, 200 Medical Park Blvd, Petersburg, VA 23805 for the Veteran's March 19, 2008 treatment for his left arm injury.  If efforts to obtain these records are unsuccessful, notify the Veteran and indicate what further steps VA will make concerning his claim.

2.  Make arrangements to obtain treatment records from the Vet Center in Evansville, Indiana from October 2010 to present.  If efforts to obtain these records are unsuccessful, notify the Veteran and indicate what further steps VA will make concerning his claim.

3.  Make arrangements to obtain any additional VA treatment records at the VAMC in Marion, Illinois, of the Veteran related to his left forearm disability and psychiatric disorder, dated since June 2011.  If efforts to obtain these records are unsuccessful, notify the Veteran and indicate what further steps VA will make concerning his claim.

4.  Thereafter, schedule the Veteran for an appropriate examination to determine the severity of his service-connected anxiety disorder.  Provide the VA examiner time to review and consider these additional records, in addition to the claims file and a copy of this Remand, in conjunction with the examination.  Any indicated tests and studies are to be conducted. 

Following examination of the Veteran, the examiner should identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are specifically attributable to his service-connected anxiety disorder.  The examiner must conduct a detailed mental status examination. 

The examiner must also discuss the effect, if any, of the Veteran's anxiety disorder on his social and occupational adaptability. 

The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's dysthymia disorder consistent with the American Psychiatric Association:  Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV) and explain the significance of the score. 

Finally, the examiner should state whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's anxiety disorder renders him unable to secure or follow a substantially gainful occupation.  In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered.

The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

5.  After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, it should be returned to the examiner for corrective action.

6.  Finally, readjudicate the claims on appeal with consideration of all additional evidence since the last Statement of the Case in November 2012.  The RO/AMC should consider the provisions of 38 C.F.R. § 4.55(e) with regard to his left forearm disability.  If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond.

The appellant 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).

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).




______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs