Citation Nr: 1312299 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-08 508A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to service connection for a left leg disability manifested by numbness. 3. Entitlement to an initial compensable evaluation for service-connected eczema of the left ankle. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. Award of the Combat Infantryman Badge is indicated by the record. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO), Portland, Oregon. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to an initial compensable evaluation for service-connected eczema of the left ankle is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a right ear hearing loss disability. 2. The Veteran does not have a current diagnosis of a left leg disability manifested by numbness. CONCLUSIONS OF LAW 1. A right ear hearing loss disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. A left leg disability manifested by numbness was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a right ear hearing loss disability and a left leg disability manifested by numbness. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice VA must notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant 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. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) 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. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in July 2008, prior to the initial adjudication of his claims. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims and there is no reasonable possibility that further assistance would aid in substantiating these claims. The evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. Additionally, the Veteran was afforded a VA audiological examination in September 2008. The VA examination report reflects that the examiner interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that the Veteran was not provided an examination and nexus opinion with regard to his claim for a left leg disability. Under 38 C.F.R. § 3.159(c)(4) (2012), VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further finds that there is sufficient evidence to decide this claim, and that further medical examination or opinion is not necessary to decide the claim for service connection for a left leg disability. As discussed in further detail below, the competent and probative evidence does not show or indicate that the Veteran has a current diagnosed left leg disability. Accordingly, a VA examination is not warranted. In sum, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of an accredited representative. In his March 2010 substantive appeal, the Veteran declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision as to the issues of entitlement to service connection for a right ear hearing loss disability and a left leg disability. Service Connection Because the outcome as to these issues involves the application of virtually similar law, the Board will address the two issues together. Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). For certain chronic disorders, including sensorineural hearing loss disability and organic diseases of the nervous system, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012). For the purposes of applying the law 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. 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. See 38 C.F.R. § 3.385 (2012). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, 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. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). The Court has held that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). In Kessel v. West, 13 Vet. App. 9 (1999), the Court affirmed that the 38 U.S.C.A. § 1154(b) presumption only relates to the question of service incurrence, it does not relate to questions of whether the veteran has a current disability or whether there was a nexus between the in-service event and the current disability. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran is claiming entitlement to service connection for a right ear hearing loss disability as well as a left leg disability manifested by numbness, which he contends are due to his military service. See, e.g., the Veteran's notice of disagreement dated January 2009. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. With respect to Hickson element (1), the competent and probative evidence of record does not demonstrate that the Veteran is currently diagnosed with either a right ear hearing loss disability or a left leg disability. In connection with his right ear hearing loss disability claim, the Veteran was afforded a VA audiological examination in September 2008. At that time, pure tone thresholds, in decibels, were as follows for the right ear: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 15 15 35 Speech discrimination score at that time was 96 percent in the right ear. The VA examiner reported hearing within normal limits through 3000 Hz sloping to a mild to severe sensorineural hearing loss in the higher frequencies with good word recognition. The September 2008 VA examination appears to have been based upon thorough examination of the Veteran and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. As discussed above, impaired hearing will be considered to be a disability 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. See 38 C.F.R. § 3.385 (2012). The competent and probative evidence of record, to include the September 2008 examination report, therefore does not demonstrate that these criteria have been met with respect to the Veteran's claimed right ear hearing loss disability. The VA examination report does not include threshold findings (from 500 - 4000 Hertz) exceeding 40 dB in the right ear, and the Veteran's puretone thresholds did not average 26 dB or more over any three frequencies (from 500 - 4000 Hertz). Likewise, the speech recognition score was not less that 94 percent in the examination. Based on these findings, the Board concludes that the competent and probative evidence of record does not demonstrate that the Veteran has a current right ear hearing loss disability for VA rating purposes. The Board recognizes that the Veteran has complained of hearing loss in his right ear. See, e.g., the Veteran's notice of disagreement dated in January 2009. Furthermore, his audiometric findings suggest that he has some hearing impairment in his right ear. Moreover, the September 2008 VA examiner opined that the Veteran's claimed hearing loss is caused by or a result of his military service. Indeed, the Veteran is currently service-connected for a left ear hearing loss disability. Crucially, however, the level of hearing impairment in his right ear does not satisfy the regulatory criteria for establishing a hearing loss disability for VA purposes. With respect to the Veteran's claimed left leg disability, the Board finds that the weight of the evidence is against a finding that the Veteran has this disability. Specifically, the competent and probative evidence of record is absent a finding of such. The Board wishes to make it clear that it has no reason to doubt that the Veteran experiences certain symptoms such as numbness in his left leg. However, symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including difficulty hearing and numbness in his left leg), has presented no competent evidence of hearing impairment of such severity to satisfy the regulatory requirements for establishing a right ear hearing loss disability for VA rating purposes. In this regard, the Board finds that the Veteran as a lay person is not competent to render a medical opinion that his current hearing impairment rises to such levels as to constitute a right ear hearing loss disability for VA purposes. Such is established only through objective medical testing of the ears. Furthermore, the Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to a left leg disability. Such opinion requires specific medical training of internal bodily processes, which is beyond the competency of the Veteran. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions or audiological findings such as pure tone thresholds or speech discrimination scores, the Board must find that his contention with regard to a diagnosis of a right ear hearing loss disability and left leg disability to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claims are not competent evidence of a current diagnosis of a right ear hearing loss disability or left leg disability. The Veteran has been accorded ample opportunity to present competent evidence of current disability in support of his claims of right ear hearing loss disability and left leg disability. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board again notes that the provisions of 38 U.S.C.A. § 1154(b) only provide an evidentiary presumption concerning events in service; they do not provide a substitute for evidence of a current disability. See Wade v. West, 11 Vet. App. 302, 305 (1999), as well as Libertine, Gregory and Kessel, all supra. In conclusion, because the competent evidence of record does not show a current diagnosis of right ear hearing loss disability or left leg disability, the first Hickson element is not met, and service connection is not warranted on that basis as to either of these claims. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a right ear hearing loss disability and a left leg disability manifested by numbness; therefore, the benefit of the doubt does not apply. The appeal is denied. ORDER Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to service connection for a left leg disability manifested by numbness is denied. REMAND Higher evaluation for skin disability The Veteran's skin disability is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7806 [dermatitis or eczema]. The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002 and again in October 2008. The October 2008 revisions are applicable to applications for benefits received by the VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran filed his claim in April 2008. Therefore, only the 2002 changes to 38 C.F.R. § 4.118 are applicable. Diagnostic Code 7806 provided for the following levels of disability: A noncompensable rating is appropriate where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted when at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent disability rating is appropriate where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12 month period. A 60 percent disability rating is appropriate where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806, as amended by 67 Fed. Reg. 49596 (July 31, 2002). The Veteran was most recently afforded a VA examination in September 2008 as to his service-connected eczema of the left ankle. At that time, the Veteran reported that he used betamethasone 0.5% cream, a corticosteroid, to treat his eczema. A private treatment record from M.S., D.O., dated March 2008 indicates that the Veteran was to use this cream 1-2 times daily. Upon examination, the VA examiner reported a localized lesion in the left ankle laterally measuring 10 X 6.0 cm area. There was mild erythema, with significant scaly, thickened skin, as well as no weeping or tenderness to palpation. The percentage of the entire body affected by the eczema was less than 5 percent. A VA treatment record dated June 2012 documents the Veteran's continued treatment of his eczema of the left ankle, to include use of triamcinolone, a corticosteroid ointment, for treatment. It is unclear from the record as to whether the Veteran's treatment for his eczema of the left ankle, to include use of betamethasone and triamcinolone, requires systemic therapy. As indicated above, systemic therapy for treatment may result in the award of a higher disability rating. In light of these ambiguities, as well as the passage of more than 4 years since the Veteran's last VA examination, the Board finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran's eczema of the left ankle. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) [Court determined that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating]; see also 38 C.F.R. § 3.159(c)(4) (2012) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claim remanded herein. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected eczema of the left ankle. The examiner should note all relevant pathology, including any disabling effects on any body part, and all indicated tests should be conducted. Photographs should be included in the examination report. (a) The examiner must specifically comment upon any scars related to the Veteran's skin disability, and describe such in complete detail. (b) The examiner must specifically comment upon the percentage of the entire body and exposed areas affected by the Veteran's skin disability. (c) The examiner should comment on whether the Veteran's skin disability requires the use of systemic therapy such as corticosteroids or other immunosuppressive drugs. If so, the frequency of use should be indicated. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the opinion or examination, and the examiner should note such review. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs