Citation Nr: 1312349	
Decision Date: 04/15/13    Archive Date: 05/02/13

DOCKET NO.  10-44 460	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss.

2.  Entitlement to service connection for a right shoulder disability.

3.  Entitlement to service connection for a right knee disability.

4.  Entitlement to an initial disability rating for right ear hearing loss in excess of zero percent. 


REPRESENTATION

Appellant (the Veteran) is represented by: National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active service from October 1998 to March 1999, from January 2002 to December 2002, and from March 2003 to August 2003.  

This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the RO in Newark, New Jersey.

The Veteran did not report for a Board hearing that was scheduled to be conducted at the RO in June 2011.  To the Board's knowledge, the Veteran has offered no explanation as to why he was unable to appear and he has since made no request for another hearing.  Accordingly, the Board will proceed to a decision on this appeal as if the hearing request had been withdrawn.  See 38 C.F.R. § 20.704(d) (2012) (failure to appear for a scheduled hearing treated as withdrawal of request).  

In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.  

The issue of entitlement to an initial disability rating for right ear hearing loss in excess of zero percent is addressed in the Remand below, and is therein remanded to the RO via the Appeals Management Center (AMC) in Washington DC. 


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the issues decided herein has been accomplished.

2.  There was no injury of the right shoulder or right knee in service.

3.  Tendonitis is not listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service are applicable.  

4.  The Veteran does not have any current disability of the right shoulder or knee and does not have a current left ear hearing loss disability for VA purposes.


CONCLUSIONS OF LAW

1.  Left ear hearing loss was not incurred in service.  38 U.S.C.A. §§  1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012).

2.  Right shoulder tendonitis was not incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

3.  Right knee tendonitis was not incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Regarding each of the claims addressed here, 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.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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").  

Lay statements may serve 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.  See Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009).  

Service Connection - Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The CAVC has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 

Certain specific conditions are considered chronic diseases under VA Law.  These include the following: Anemia, primary; Arteriosclerosis; Arthritis; Atrophy, progressive muscular; Brain hemorrhage; Brain thrombosis; Bronchiectasis; Calculi of the kidney, bladder, or gallbladder; Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed); Cirrhosis of the liver; Coccidioidomycosis; Diabetes mellitus; Encephalitis lethargica residuals; Endocarditis. (This term covers all forms of valvular heart disease); Endocrinopathies; Epilepsies; Hansen's disease; Hodgkin's disease; Leukemia; Lupus erythematosus, systemic; Myasthenia gravis; Myelitis; Myocarditis; Nephritis; Other organic diseases of the nervous system; Osteitis deformans (Paget's disease); Osteomalacia; Palsy, bulbar; Paralysis agitans; Psychoses; Purpura idiopathic, hemorrhagic; Raynaud's disease; Sarcoidosis; Scleroderma; Sclerosis, amyotrophic lateral; Sclerosis, multiple; Syringomyelia; Thromboangiitis obliterans (Buerger's disease); Tuberculosis, active; Tumors, malignant, or of the brain or spinal cord or peripheral nerves; Ulcers, peptic (gastric or duodenal)(A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data.  38 C.F.R. § 3.309(a).  

Where one of the above chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).

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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b).

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

Where a veteran served 90 days or more during a period of war or after December 31, 1946, and any of the chronic diseases listed above becomes manifest to a degree of 10 percent within 1 year from date of termination of such service (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years), such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Tendonitis and hearing loss are not included among the chronic disease listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.309(b) does not apply.  See Walker, supra.  To the extent that sensorineural hearing loss may be considered an organic disease of the nervous system, the Board notes that sensorineural hearing loss has not been diagnosed with respect to the left ear.  The current diagnosis for the left ear is clinically normal (November 2009 VA examination).  Accordingly, the above provisions are not applicable.  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).

After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that there is no current disability of the right elbow or shoulder, to include tendonitis.  The Veteran has not submitted or identified any clinical evidence to support his assertion that he has tendonitis of the right shoulder or knee.  The RO sent him a letter asking for such evidence.  The Veteran identified treatment from a private physician.  However, when his records were requested, the only records received related to treatment for a cervical spine disorder.  

The Court of Appeals for Veterans Claims has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  However, Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. § 1110.  Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

The Veteran apparently believes that he has disabilities of the right shoulder and knee.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), establishing a diagnosis of a chronic disability such as tendonitis falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

The Veteran is certainly competent to relate his observable symptoms.  To the extent that he is currently experiencing pain or other symptoms of the right shoulder or knee, he has provided no specific description of these symptoms.  Moreover, VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms.  VA needs to identify a disability, not symptoms of a disability.  Accordingly, service connection cannot be granted for symptoms of a disability.

The Board has considered the Veteran's service treatment records in order to determine whether a chronic disability of the right shoulder or knee existed in service, or whether a left ear hearing loss disability existed in service.  The Veteran had three periods of service from October 1998 to March 1999, from January 2002 to December 2002, and from March 2003 to August 2003.  

An audiogram at service entry in April 1998 reveals pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
30
20
20
15
10

In November 1998, the Veteran was treated for a left hamstring pull.  The diagnosis was a strain.  The Veteran was examined prior to service separation in February 1999.  His upper and lower extremities were found to be clinically normal with the exception of a 1cm cyan mole on the left scapula.  The Veteran reported no history of a painful or trick shoulder, and no history of a trick or locked knee.  

In February 2002, the Veteran was treated for swelling in the left elbow following pull ups.  The diagnosis was left arm overuse syndrome.  An orthopedic consultation ruled out a diagnosis of compartment syndrome.  During an overseas deployment in May 2002 the Veteran completed a health assessment.  He reported that his health was very good, and that he had no unresolved medical problems that developed during the deployment.  In November 2002, the Veteran acknowledged that his last examination was in February 1999 and that there was no interval medical history since that examination.  The Veteran was found to be physically qualified for service separation with no defects that would disqualify him from performance of his duties.  He was afforded the opportunity for an evaluation by a medical officer if so desired.  

In July 2003, the Veteran again acknowledged that his last examination was in February 1999.  The only interval history noted was "treated for SWA," which is presumed to be an abbreviation for Southwest Asia.  A July 2003 report of medical assessment reflects the Veteran's specific complaints of stomach problems - SWA, and ringing in the right ear.  

In sum, there is no record of treatment for any right knee or right shoulder injury or disease in service.  Moreover, the Veteran's upper extremities were clinically normal on examination in February 1999, and the Veteran repeatedly reported that there was no significant interval history that would warrant another examination.  In July 2003, while he acknowledged stomach and ear complaints, he did not report any knee or shoulder complaints.  Also significant, during the course of this claim and appeal, the Veteran has never described a specific injury or disease of the right shoulder or knee.  Thus, the weight of the evidence demonstrates that there was no injury or disease of the right shoulder or knee in service and no chronic disability present at service separation, and that there is no current disability of the right shoulder or knee.  As such, the Board finds that service connection is not warranted for either claimed disability.  

Turning to the issue of service connection for left ear hearing loss, on the audiological evaluation in November 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
15
10
15
10
5

The average for the left ear was 10.  Speech recognition ability was 98 percent.  

Based on the current audiology findings, and those recorded in service, the Veteran does not have a left ear hearing loss disability as defined for VA purposes.  As there is no recognized disability of left ear hearing loss, the basic eligibility requirements for service connection are not met.  

In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against each claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The United States Court of Appeals for Veterans Claims issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

In this case, the Veteran submitted his original claim for VA compensation in May 2009.  He was sent a letter in June 2009 which advised him of the information and evidence necessary to substantiate his claim.  That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Since the June 2009 letter was sent to the Veteran prior to the initial adjudication of the claim in February 2010, there exists no error in the timing of this notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In short, VA has complied with its duty to notify the Veteran in this case.

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, and the Veteran's written assertions and personal hearing testimony.  In May 2009, the Veteran identified and provided authorization for treatment from private physician Dr. D. for the right shoulder and knee.  In June 2009, the RO requested records from Dr. D., and those records were received; however, they do not include any record of treatment for the right shoulder or knee, and there is no indication that any additional records exist.  

In addition, the Veteran was afforded a VA examination to address the nature, etiology, and current severity of his claimed hear loss.  This examination was adequate because it was performed by a medical professional based on acknowledged claims file review, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  The resulting findings are pertinent to the rating schedule for hearing loss, and are consistent with the examination and the record.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).

Regarding claimed tendonitis of the right shoulder and knee, an examination has not been provided.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted.  In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277.  On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection.  Waters, 601 F.3d at 1278-1279.  Here, as the only evidence that the Veteran's claimed disabilities are related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence.  Accordingly, the Board finds that referral for a VA medical examination is not warranted.  

Significantly, neither the appellant nor his or representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER

Service connection for left ear hearing loss is denied.

Service connection for a right shoulder disability is denied.

Service connection for a right knee disability is denied.


REMAND

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenman v. Principi, 3 Vet. App. 345 (1992).  

In order to assign a rating, a numeric designation of hearing impairment is calculated based on the puretone threshold average and speech discrimination values.  

An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  See 38 C.F.R. § 4.85(a).  

On audiological evaluation in November 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
20
60

A review of the November 2009 VA examination report reveals that, although a speech discrimination value was reported for the Veteran's nonservice-connected left ear, no value was reported for the service-connected right ear.  There is no other post-service audiology examination of record.  

The Board acknowledges that an alternative method is provided in the rating schedule which derives the numeric designation of hearing impairment based only on the puretone threshold average; however, that method is to be used only when the examiner certifies that use of the speech discrimination testing is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when exceptional patterns of hearing impairment are present.  

In this case, the November 2009 VA examiner made no certification as to the inappropriateness of determining a speech discrimination value.  

Regarding exceptional patterns of hearing impairment, there are two instances which qualify.  When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more; and, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  In this case, neither condition applies.  

In sum, the Board finds that it cannot calculate the Veteran's disability rating for right ear hearing loss without a speech discrimination score.  In so finding, the Board notes that it is technically possible to obtain a compensable rating with the Veteran's current puretone average of 36.25, if an appropriately low speech discrimination score were reported.  Thus, a speech discrimination score is necessary to resolve the appeal as to this issue.  

Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  An inadequate examination frustrates judicial review.  Hicks v. Brown, 8 Vet. App. 417, 422 (1995).  

If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2012). 

Accordingly, the issue of entitlement to an initial rating for right ear hearing loss in excess of zero percent is REMANDED for the following action:

1.  Request a supplemental report from the examiner who conducted the November 2009 VA examination specifically requesting that, if the speech discrimination score for the service-connected right ear was simply omitted from the report, to provide that score.  

If the examiner is not available, or if the examiner determines that additional examination of the Veteran is necessary to provide a speech discrimination score, such examination should be scheduled.  The claims folder must be made available to and reviewed by the examiner.  

2.  Readjudicate the remanded claim for an initial disability rating for right ear hearing loss in excess of zero percent.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim.  See 38 C.F.R. § 3.655 (2012). 

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. 2011).


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs