Citation Nr: 1313647 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 12-23 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a ruptured right eardrum, to include hearing loss. 2. Entitlement to service connection for low back disability. 3. Entitlement to service connection for residuals of a broken jaw. 4. Entitlement to service connection for right thigh disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active service from March 1955 to March 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection. A notice of disagreement was received in April 2010, a statement of the case was issued in June 2012, and a substantive appeal was received in August 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's current hearing loss is not causally related to his active duty service, to include as due to a ruptured right eardrum; there are no current residuals of a ruptured right ear drum. 2. The Veteran's current low back disability is not causally related to his active duty service. 3. There are no current residuals of a broken jaw suffered during service. 4. There are no current residuals of right thigh injury suffered during service. CONCLUSIONS OF LAW 1. Residuals of a perforated right eardrum, to include right ear hearing loss, were not incurred in or aggravated by service, and right ear hearing loss may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Low back disability was not incurred in or aggravated by service, and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. Residuals of a broken jaw were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 4. Right thigh disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in a July 2009 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in July 2009, which was prior to the April 2010 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 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). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claims for service connection. The July 2009 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Service treatment records (STRs) and VA medical records are associated with the file. The Board notes that many of the Veteran's STRs are partly or wholly illegible, which the Veteran's representative correctly notes is because they are fire-related. Thus, VA has a heightened duty to assist the Veteran in developing evidence to substantiate these claims. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Additionally, the Veteran was afforded VA examinations in October 2009 and January 2010. Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Legal Criteria The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss and arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). When there is an approximate balance of positive and negative 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). A service enlistment examination was negative for any complaints or diagnoses, except as related to his skin. Whispered voice testing was conducted and revealed 15/15 hearing in both ears. January 1958 STRs note a compound fracture of the Veteran's left jaw. The Veteran reported swelling and soreness. On separation report of medical history, the Veteran specifically denied swollen or painful joints, ear trouble, running ears, arthritis, or bone/joint deformity. On clinical examination, it was reported that his spine, ear drums, head, lower extremities, face, and mouth were all normal. A scar on the right hand was reported, but no scar on the right lower extremity was noted. At separation, both whispered and spoken voice testing were reported at 15/15 in both ears. Postservice VA treatment records include a January 2003 notation that the patient was seen following an altercation and a fall, and that he complained of right upper thigh pain. The Veteran was seen in April 2006 following a bike injury. The Veteran complained of shooting pain from his back to his left leg. The Veteran was afforded a VA audiological examination in October 2009. The Veteran claimed decreased hearing in his right ear, which he attributes to a perforated eardrum in the military. He reported noise exposure on the firing range in the military, stating that he wore a helmet, but no earplugs. After leaving the military, the Veteran reported driving trucks and working on dredges without ear protection off and on for many years. He denied recreational noise exposure. The Veteran was diagnosed with bilateral sensorineural hearing loss, mild sloping to profound. The examiner noted that there was no conductive component to the hearing loss and that both tympanic membranes were intact. The examiner opined that the Veteran's current hearing loss was not due to residual effects of the reported tympanic membrane perforation in the military. He noted that there were no conductive components and that middle ear mobility was normal. Further, he stated that the Veteran did not claim noise-induced hearing loss and did not report a substantial amount of noise exposure in the military. However, the examiner noted that the Veteran did report substantial noise exposure working on dredges postservice, which the examiner concluded was the most likely cause of the current hearing loss. On January 2010 VA examination for the back and thigh, the Veteran reported that he injured his back and thigh on the first day of jump school in service when his instructor pushed him off the platform and he was unprepared. The Veteran stated that he did not hit the ground as he was suspended by the harness, but that the harness suspended him and cut him in the medial area of the upper part of the right thigh. The Veteran stated that he was treated at the dispensary and the same day, he continued jump school. The Veteran reported completing a total of 19 jumps, including approximately 10 or more unofficial jumps. The Veteran also reported a car accident postservice, when the car turned upside down and his rib cage was crushed, in addition to a motorcycle accident, when he was thrown 12 feet in the air and was unconscious for 6 hours. The Veteran also reported a work-related injury (leg fracture) in 1980. The Veteran stated that he was in a total of 9 accidents. Diagnostic imaging of the back revealed moderate degenerative disease of the lumbar and sacral spine; narrowed lumbosacral disc space. The examiner opined that the Veteran's low back disability was less likely as not caused by or a result of an injury during service. In support of his opinion, the examiner noted that the Veteran reported not hitting the ground when pushed off the platform, and further that he was able to continue with jump school following the incident and also completed his 3 weeks of training, which included doing multiple jumps. Further, the examiner noted that the Veteran reported a total of 9 accidents postservice, which could have caused the Veteran's back problems. The examiner stated that the Veteran's current back disability (as evidenced by the X-ray) is the result of chronic wear and tear of the lumbosacral spine over several years. As for the right thigh, X-ray imaging of the right femur showed the femur intact and vascular calcification was noted. The examiner provided no current diagnosis. He stated that the Veteran's reported right thigh injury in service was a soft tissue injury from the harness, and most likely did not involve a bone injury. Again, the examiner noted the Veteran's history or returning to jump school right after his claimed injury and continuing to participate in training. The examiner stated that if there was a bone injury (fracture), he would not have been able to participate in the training right after injuring his thigh. Further, the examiner noted that the femur X-ray showed no abnormality. The examiner also commented that there was no visible scar at the site on the right thigh where the Veteran said there was. The Veteran also underwent a VA examination in January 2010 for the residuals of a broken jaw claim. The Veteran reported that he has symptoms in his lower left jaw sometimes when yawning and he stated that he cannot chew food well. He stated that he believes his symptoms are related to his fracture while on active duty. An examination revealed excellent range of motion without joint sounds or tenderness. There was no pain on palpation of muscles or mastication. Panorex radiographs showed complete healing and no evidence of fracture. The examiner noted that the Veteran had several missing teeth and that remaining dentition has poor prognosis from advanced caries and periodontal disease. When the Veteran pointed specifically to the area on his jaw where his symptoms have reoccurred, the examiner noted he was putting pressure on #18, which is nonrestorable from advanced periodontal disease and caries; masseter muscle attaches at the facial vestibule in that area. The examiner stated that this is the likely cause of the symptoms the Veteran describes. In conclusion, the examiner stated that the Veteran's reports of pain on yawning and difficulty chewing are related to his poor oral health and are not residuals of the left jaw fracture in service. Analysis Ruptured Ear Drum The Veteran contends that he incurred a ruptured tympanic membrane during his paratrooper duties, which has caused decreased hearing in his right ear. 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, 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. 38 C.F.R. § 3.385. The record reflects that the Veteran's hearing loss currently meets the regulatory thresholds to be considered disabling. An October 2009 VA audiology test showed that the Veteran does have hearing loss as defined by 38 C.F.R. § 3.385. The only remaining question is whether the current hearing loss is related to the Veteran's service. Hearing loss was not noted at entrance to service or upon separation examination. There is otherwise no documentation of hearing complaints during service. There is also no documentation of a perforated right ear drum during service. It is significant that the Veteran expressly denied ear problems at the time of separation examination as this suggests that he did not believe he suffered any ear problems at that time. If is even more significant that examination of the Veteran's ear drums on separation showed them to be clinically normal. The Board further notes that VA examination in October 2009 showed the tympanic membranes to be intact. In sum, there is no medical evidence of a perforated ear drum during service or currently. With regard to the Veteran's claim of right ear hearing loss, there is competent evidence that he currently has such hearing loss. However, the preponderance of the evidence is against a finding that it is related to any incident of service, to include noise exposure or a perforated right ear drum. On VA examination, the examiner concluded that the Veteran's current hearing loss was not due to the residual effects of the reported tympanic membrane perforation in the military. An examination revealed no conductive components, normal middle ear mobility, and that both tympanic membranes were intact. The examiner noted the Veteran's substantial noise exposure postservice in which the Veteran admitted to not wearing hearing protection and stated that this was the likely cause of the Veteran's current hearing loss. With regard to the Veteran's current assertions that he had a ruptured tympanic membrane during service which resulted in hearing loss, the Board does not view those assertions as credible when viewed against the other evidence. Again, the Veteran expressly that he had, or had had, ear problems at the time of his separation examination. His current assertions are simply inconsistent with what he reported on separation examination. After a thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination as to this issue. 38 U.S.C.A. § 5107(b). The preponderance of the evidence is against the Veteran's right ear claim. Low Back Disability The Veteran contends that he injured his low back during a jump school/paratrooper incident and that his back has bothered him continuously since. See April 2009 Veteran statement; see also March 2013 appellant's brief. The record reflects that the Veteran has a current diagnosis of moderate degenerative disease of the lumbar and sacral spine. What is left for determination is whether this disability is related to service. The STRs contain no mention of any complaints, treatment, or diagnoses related to the Veteran's back. Significantly, on separation examination, the Veteran's spine was clinically evaluated as normal. The Board acknowledges the Veteran's assertions that he has back pain related to service. The Veteran is competent to report the types of symptoms he has experienced and the continuity of such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). However, a VA medical examiner, with full knowledge of the Veteran's reports of a back injury in service and continuous back problems, was nevertheless of the opinion that the Veteran's current back disability is not causally related to service. The examiner specifically pointed out that the Veteran was able to continue with jump school immediately following injury and was also able to complete his training, which included doing many more jumps. Additionally, the Veteran himself reported 9 postservice accidents, which the examiner noted could be the cause of his current back problems. The examiner stated that the Veteran's current disability is the result of chronic wear and tear over several years. In other words, there is medical evidence suggesting that the Veteran's current low back disability is not due to any claimed inservice back injury. No medical evidence of record contradicts the January 2010 VA examiner's analysis addressing the nature and etiology of the Veteran's current back disability, or otherwise relates this disability to service. Additionally, while not determinative by itself, it is also significant that there is no evidence of back disability for approximately 50 years after service. The only postservice treatment record noting back pain was in April 2006 when the Veteran was seen following a bike accident. This lengthy period without complaints or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxon v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Further, the one-year presumption of service incurrence for arthritis is not for application here. After a through review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim for back disability. Broken Jaw and Thigh Disability The Veteran further contends that he suffered a broken jaw in service and has suffered the residuals of this injury since. He also contends that he injured his right thigh during the jump school/paratrooper incident and that his thigh has bothered him continuously since. See April 2009 Veteran statement; see also March 2013 appellant's brief. With regard to the broken jaw, service treatment records appear to document that injury. However, on VA examination in connection with this claim the examiner reported that there were no current residuals of such injury. An x-ray showed no evidence of the fracture. While the Veteran has reported pain on yawning and difficulty chewing, there was no evidence of residuals on VA examination, and further, the examiner noted that the Veteran's poor oral health was the likely cause of the Veteran's reported symptoms. Regarding the right thigh claim, the VA examiner provided no current diagnosis and noted that the right femur X-ray showed no abnormality. Although the Veteran reported that the scar site was painful on occasion, the examiner was not able to detect any scar. In other words, there is no current right thigh disability related to the claimed right thigh injury during service. To the extent that the Veteran reports the inservice injuries and continuing pain since then, he is competent to report such. However, there is no medical evidence of any current residual disability of the jaw or right thigh. As residuals of a jaw injury and a right thigh disability are not shown, a threshold legal requirement for establishing service connection for such disabilities is not met. Therefore, the benefit of the doubt rule does not apply; the appeals in these matters must be denied. See 38 U.S.C.A. § 1131; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). ORDER The appeal is denied as to all issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs