Citation Nr: 1311288 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 09-10 998A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a pulmonary disability, to include obstructive sleep apnea (OSA). 3. Entitlement to service connection for low back disability. 4. Entitlement to service connection for a stomach disability to include gastroesophageal reflux disease (GERD). 5. Entitlement to service connection for boils around the foot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from January and June 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for an acquired psychiatric disorder was raised by the Veteran's representative in a March 2013 brief but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a low back disability and pulmonary disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing loss disability per VA regulations. 2. Any stomach disability to include GERD is not etiologically related to service. 3. The Veteran has not been diagnosed with boils around the foot during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.159, 3.303(d), 3.385 (2012). 2. The criteria for service connection for a stomach disability are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. The criteria for service connection for boils around the foot are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided notice required under VCAA in June and July 2007, to include notice as required under Dingess. Moreover, after the letter was provided, the Veteran was afforded the opportunity to submit additional evidence and he did so. Furthermore, the claim was thereafter readjudicated. Therefore, the purpose of the VCAA notice was fulfilled. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA has also satisfied its duty to assist the Veteran under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Available service treatment records and pertinent post-service records have been associated with the claim folder. The Veteran has not been afforded a VA medical examination in response to the claims for a stomach disability or boils around the foot, herein decided. However, medical examination is not required if the appellant has not presented a prima facie case for the benefit claimed. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam). As noted in detail below, the Veteran has not presented a prima facie case for service connection for these claims. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claims. Legal Criteria and Analysis Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). However, the claimed disabilities are not "chronic diseases" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.309(b) does not apply. See Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. It is noted, however, that although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. Claim - Bilateral Hearing Loss 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran claims that he is entitled to service connection for bilateral hearing loss as he was not issued protective hearing equipment in service and feels that his hearing loss was caused by the continuous loud noises. Service treatment records do not show that the Veteran was found to have bilateral hearing loss disability. However, his DD Form 214 shows that his military occupation was artillery crewmember. The Board notes that if VA determines that a veteran engaged in combat with the enemy, then the veteran's lay testimony or statements are accepted as sufficient evidence of the occurrence of the injury or disease 38 C.F.R. § 3.304(d) provided that the claimed injury or disease is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. The Board concedes exposure to in-service acoustic trauma; however, the Veteran must also show a current hearing loss disability caused by that trauma. The Veteran was afforded a VA audiological evaluation in January 2008 in which he reported in-service artillery and Vietnam noise for one year. Audiometric evaluation of the ears showed puretone thresholds as follows for the right ear: 15 dB at 500 Hertz, 20 dB at 1000 Hertz, 15 dB at 2000 Hertz, 20 dB at 3000 Hertz, and 25 dB at 4000 Hertz; left ear: 15 dB at 500 Hertz, 15 dB at 1000 Hertz, 20 dB at 2000 Hertz, 30 dB at 3000 Hertz, and 30 dB at 4000 Hertz. The speech recognition score were 96 percent for the right and 100 percent for the left. The diagnosis was right ear clinically normal and left ear hearing loss not disabling. The foregoing VA examination showed that the Veteran does not have sufficient hearing impairment to qualify as a disability for VA compensation purposes. In addition, there is no other evidence showing that he has sufficient hearing impairment to qualify as a disability. Accordingly, this claim must be denied. The Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, the Veteran is not competent to render an opinion concerning medical diagnosis or causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). As discussed above, there is no medical evidence showing that the Veteran has sufficient hearing impairment to qualify as a disability. Therefore, for the reasons and bases expressed above, the Board concludes that the evidence in this case preponderates against the claim and the benefit of the doubt rule is not for application. Gilbert, 1 Vet. App. 49, 53. Claim - Stomach Disability The Veteran filed the instant claim for service connection for a stomach disability in June 2007. Service treatment records do not show treatment for or diagnosis of a stomach-gastrointestinal disability. The claims file shows a private treatment record in March 2006 with a diagnosis of GERD. The claims file also shows a diagnosis of GERD, stable, during the pendency of this claim in June 2007. On review of the evidence, the Board finds the Veteran has GERD. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer, 7 Vet. App. 379, 384; Falzone, 8 Vet. App. 398, 403; Caldwell, 1 Vet. App. 466. Therefore, the Board acknowledges the Veteran's written statement that he feels his stomach disability is related to service. The Board also recognizes that the Veteran is competent to report observable symptomatology. However, once evidence is determined to be competent, the Board must determine whether such evidence also is credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, the Board may consider factors such as self-interest, bias, and consistency with other evidence of record, and desire for monetary gain. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board also may weigh the absence of contemporaneous medical evidence against lay evidence in determining credibility, although it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that there is no objective evidence of a stomach disability from the time of the Veteran's discharge in 1967 until 2006, over 30 years after separation. Generally, the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board recognizes in this regard that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). However, in this case, service medical treatment records are negative for the claimed stomach disability. In addition, there is no corroborating clinical evidence of any stomach disability between service and 2006. In sum, the Board finds that the competent and credible evidence of record establishes that no stomach disability, to include GERD, was present in service or until many years after the Veteran's discharge from service and that the Veteran's current stomach disability is not etiologically related to service. Therefore, for the reasons and bases expressed above, the Board concludes that the evidence in this case preponderates against the claim and the benefit of the doubt rule is not for application. Gilbert, 1 Vet. App. 49, 53. Claim - Boils Around the Foot The Veteran filed the instant claim for service connection in July 2007, submitting a statement that because of Agent Orange, he had a boil around his foot which had to be treated. Service treatment records do not show treatment for or diagnosis of a boil around the Veteran's foot. The record establishes that the Veteran did not have boils around his feet at the time the claim for VA disability compensation was filed in 2007, or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). Therefore, he is not entitled to service connection for boils around the foot. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). The Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer, 7 Vet. App. 379, 384; Falzone, 8 Vet. App. 398, 403; Caldwell, 1 Vet. App. 466. However, the Veteran is not competent to render an opinion concerning medical diagnosis or causation. See Espiritu, 2 Vet. App. 492, 494. Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones, 7 Vet. App. 134, 137. As discussed above, there is no medical evidence showing that the Veteran has boils on his feet during the pendency of this claim. Therefore, for the reasons and bases expressed above, the Board concludes that the evidence in this case preponderates against the claim and the benefit of the doubt rule is not for application. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for stomach disability is denied. Entitlement to service connection for boils around the foot is denied. REMAND Claim - Pulmonary Disability The Veteran filed the instant claim for service connection for a lung disability in June 2007. Service treatment records show a subjective report of medical history in June 1967 in which the Veteran noted a chronic cough. There is no other mention of treatment for or a diagnosis of a lung disability in service. A VA treatment record in September 2007 shows that the Veteran was treated for and diagnosed with obstructive sleep apnea (OSA). While the Veteran filed a claim for service connection for a lung disability and the RO adjudicated the issue of service connection for pleural asbestos disease, he has submitted medical evidence showing that he currently has OSA. Because the evidence developed during the processing of this claim indicates that the symptoms for which the Veteran is seeking VA benefits may be caused by a lung disability other than pleural asbestos disease, the issue of entitlement to service connection for a pulmonary disability other than pleural asbestos disease is part of the Veteran's appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The RO has not properly developed and addressed the issue of service connection for a pulmonary disability other than pleural asbestos disease. Therefore, the issue must be remanded. Claim - Back Disability The Veteran filed the instant claim for service connection for a back disability in June 2007. The Veteran stated in his claim that he was in the artillery unit in the military and drove a truck to carry equipment from one location to another. He stated that he did a lot of heavy lifting and moving ammunition boxes and artillery. He contends that the stress on his back was the cause of his low back pain. The Veteran's DD Form 214 shows that his military occupation was artillery crewmember. The Veteran's post-service medical records are replete with back treatment and diagnoses. The record also reflects that the Veteran has not been afforded a VA examination in response to his claim for a back disability. VA is obliged to provide an examination or obtain a medical opinion if the evidence of record: contains competent evidence that the claimant has a current disability, or persistent recurrent symptoms of a disability; and establishes that the Veteran suffered an injury or disease in service; indicates that the claimed disability or symptoms may be associated with the established injury or disease in service or with another service-connected disability, but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159 (c) (4) (2012). The threshold for finding that there "may" be a nexus between current disability or persistent or recurrent symptoms of disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v Nicholson, 20 Vet. App. 79 at 83 (2006). Under the circumstances, the Board finds that the duty to assist set forth at 38 C.F.R. § 3.159 requires that the Veteran be scheduled for a VA examination in response to his claim for a back disability. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development of the issue of entitlement to service connection for a pulmonary disability other than pleural asbestos disease, including the provision of the notice required under 38 U.S.C. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b) (2012). 2. The RO or the AMC should undertake appropriate development to obtain a copy of any outstanding, pertinent medical records. The RO should also obtain a medical opinion as to whether the veteran's sleep apnea as likely as not began during his military service. If an examination is indicated, one should be performed. 3. Then, the Veteran should be afforded a VA examination to determine the nature and etiology of his back disability. The claims folder must be made available to and reviewed by the examiner. All indicated studies should be performed. The examiner should provide an opinion as to whether it is as least as likely as not (50 percent or greater probability) that any back disability present during the pendency of this claim or currently present had its onset in service or is otherwise related to service. Reasons and bases for all conclusions should be provided. 4. The RO or the AMC should undertake any additional development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate these remanded claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded the requisite opportunity to respond before the claim folders are returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. 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). ______________________________________________ MARK GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs