Citation Nr: 1311932 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-08 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left ear hearing loss disability. 2. Entitlement to service connection for residuals of cold injury to the lower extremities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket. The Veteran, who is the appellant, served on active duty from February 1955 to February 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In a decision in January 2012, the Board reopened the claim of service connection for a left ear hearing loss disability and remanded the reopened claim and remanded the claim of service connection for residuals of cold injury of the lower extremities for additional development. FINDINGS OF FACT 1. A left ear hearing loss disability had onset in service. 2. During the appeal period, residuals of cold injury to the lower extremities are not demonstrated. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ear hearing loss disability have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. The criteria for service connection for residuals of cold injury to the lower extremities have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. On the claim of service connection for a left ear hearing loss disability, as the Board is granting the claim, VCAA compliance need not be further addressed. Duty to Notify On the claim of service connection for residuals of cold injury, on 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. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter in May 2009. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has requested service treatment records and inpatient hospital records from Frankfurt, Germany, however the National Personnel Records Center has reported that the Veteran's service treatment records were apparently destroyed in a fire at the NPRC in 1973, and that no hospital records from Frankfurt were available. VA records, and private medical records, have been obtained. The Veteran was afforded a VA examination in November 2012. As the examination report is based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on 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 disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection 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. Generally, to establish entitlement to VA disability compensation, 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). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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 after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 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). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran does not assert that he was in combat and the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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). Where the service treatment records are unavailable, there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A Left Ear Hearing Loss Disability For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. 38 C.F.R. § 3.385. The Veteran asserts that he injured his left ear when a rifle was fired close to his ear, resulting in bleeding from the ear and he was hospitalized for treatment. As noted above, the service treatment records are not available and the records are presumed to have been destroyed in a fire in 1973 at the National Personnel Records Center, the federal custodian of the records. After service, in October 1995, the left ear was lavaged and at the time the tympanic membrane was intact. In December 1996, the Veteran complained of an one-week history of pain and yellow drainage from his left ear. Otitis media was diagnosed. The Veteran filed his initial claim of service connection for a left ear hearing loss disability in May 1997. On VA examination in June 1997, the Veteran complained of deafness in the left ear. The pure tone thresholds in decibels in the left ear were: HERTZ 500 1000 2000 3000 4000 RIGHT x x x x X LEFT 70 75 85 85 90 Speech recognition ability was 92 percent. The Veteran stated that his hearing problems began in service in 1957 when he was exposed to the firing of large guns and he suffered a concussion, resulting in bleeding from the left ear. The VA examiner noted a virtual absence of the left tympanic membrane and a small remnant of the long process of the malleus. The VA examiner expressed the opinion that the Veteran's left ear hearing loss and pain were related to chronic otitis. On VA examination in November 2012, the VA examiner stated that it would be speculative to provide a medical opinion on the etiology of hearing loss because there were multiple potential etiologies of the Veteran's left ear hearing loss and there was no record of audiometric testing in the Veteran's file. On the claim of service connection for a left ear hearing loss disability, in March 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from an otolaryngologist of the Veterans Health Administration (VHA). The VHA expert reviewed the Veteran's history and summarized the available evidence and then concluded that it was at least as likely as not that the left ear hearing loss was related either to noise exposure or to ear injury or both in service. The VHA expert noted that in June 1997 an audiogram showed a severe mixed hearing loss with a large portion that was sensorineural and that the Veteran was competent to describe his ear injury and acoustic trauma in service, which was consistent with the subsequent sensorineural hearing loss. The Board finds that the opinion of the VHA expert, an otolaryngologist, is persuasive evidence in favor of the claim and outweighs the opinion of the VA examiner, who was unable to render an opinion without resorting to speculation and the VA examiner relied on the absence of medical records to corroborate hearing loss, which under the circumstances of the case, has minimal probative value as the Board finds that the Veteran was exposed to noise in service, and the Veteran is competent to describe noise exposure and an ear injury in service. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the Veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the Veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence). For this reasons, the Veteran prevails on the claim of service connection for a left ear hearing loss disability. Residuals of Cold Injury The Veteran testified that he did not seek treatment for a cold injury in service, but his unit trained in the winter, when the temperatures dropped below freezing. He testified that he has had skin problems on his feet since then. On VA examination in May 2009, there was no complaint or finding related to a cold injury. On VA examination in November 2012, the Veteran stated that he sustaining cold injuries to his feet while serving in Germany in the 1950s. He did not recall any specific treatment during service, but stated that in cold weather now his feet will become numb and ache. He denied any current treatment. The VA examiner stated that it was less likely than not that cold injury residuals were caused by service. The VA examiner explained that there were no objective findings, including radiologic or on physical examination, consistent with residuals of cold injury of the feet. There were age-appropriate degenerative changes of the metatarsophalangeal joints, but otherwise normal radiographs of the feet. The Veteran as a layperson is competent to describe symptoms of cold exposure, which are within the realm of the Veteran's personal knowledge, which the Board finds credible. 38 C.F.R. § 3.159; see Layno at 469-71 (lay testimony is competent as to symptoms of an injury, which are within the realm of one's personal knowledge); see Caluza at 511 (credibility determination by the Board). The next question is whether the Veteran as layperson is competent to diagnosis and residuals of a cold injury. The Veteran as a lay person is competent to identify a simple medical condition, that is, one capable of lay observation, to report a contemporaneous medical diagnosis, or to describe symptoms that later support a diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007) (a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). And the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). Whether the Veteran has residuals of cold injury is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation as residuals of a cold injury fall outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to render a diagnosis of residuals of cold injury. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose or to establish medical causation is not competent evidence). Where, as here, there is a question of the diagnosis of residuals of a cold injury, which is not capable of lay observation, to the extent the Veteran's lay testimony is offered as proof of the presence of residuals of a cold injury, the Veteran's lay testimony is not competent evidence, and the Veteran's lay testimony is not admissible as evidence, that is, the Veteran's lay testimony is not to be considered as competent evidence that he currently has residuals of a cold injury. As for the Veteran describing a contemporaneous medical diagnosis, there is no competent medical evidence of a diagnosis of a cold injury. And no medical professional has associated the Veteran's symptoms to a cold injury in service. As there is no competent evidence of a current disability, the Board need not reach the question of the Veteran's credibility or whether the Veteran is competent to offer an opinion on the "nexus" requirement in order to establish service connection. It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). Without competent evidence that the Veteran has a diagnosis of residuals of cold injury of the lower extremities, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of competent evidence of a current disability, the preponderance of the evidence is against the claim, and the benefit- of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for left ear hearing loss is granted. Service connection for residuals of cold injury to the lower extremities is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs