Citation Nr: 1314376 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-26 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine, to include as secondary to the Veteran's service-connected lower back disability. 2. Entitlement to service connection bilateral hearing loss. 3. Entitlement to service connection for degenerative joint disease (DJD) of the left hip. 4. Entitlement to a rating in excess of 10 percent for residuals of a meniscectomy of the right knee. 5. Entitlement to a rating in excess of 10 percent for a lower back disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to March 1969. His military occupational specialty (MOS) was as a helicopter repairman. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2008 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2011, the Board remanded the claims for additional evidentiary development. The case has now been returned for further appellate consideration. The issues of entitlement to service connection for DDD of the cervical spine, to include as secondary to the Veteran's service-connected lower back disability, entitlement to service connection for DJD of the left hip, and entitlement to a rating in excess of 10 percent for residuals of a meniscectomy of the right knee, and entitlement to a rating in excess of 10 percent for a lower back disability, are addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDING OF FACT The competent, credible, and probative evidence of record does not demonstrate a nexus between the conceded acoustic trauma and the current bilateral hearing loss disability, a continuity of symptomatology since discharge from service, nor a manifestation of the disability within one year following discharge from service. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by service and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in March 2009, September 2009, October 2009, and February 2012) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The United States Court of Appeals for Veterans Claims (Court) 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, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the March 2009 and September 2009 letters mentioned above. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examination as to the etiology of hearing loss, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence as to this issue to be obtained by either VA or the Veteran. Moreover, it is noted that as recently as October 2012, additional treatment records were added to the record subsequent to the issuance of a September 2012 SSOC and were not accompanied by a waiver of initial consideration. See 38 C.F.R. § 20.1304(c). However, remand is not required as to the claim of entitlement to service connection for hearing loss as the records submitted are not pertinent to the issue. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for entitlement to service connection for bilateral hearing loss disability is thus ready to be considered on the merits. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Service connection may 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) (2012). Where there is a chronic disease shown as such 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) (2012). This rule does not mean that any manifestations in service will permit service connection. To show 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 entity is established, there is no requirement of evidentiary showing of continuity. 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) (2012). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). If a Veteran is determined to have served in combat, and an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(d) (2012). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(d) (2012). Section 1154(b) allows combat Veterans, in certain circumstances, to use lay evidence to establish the incurrence of a disease or injury in service. "However, the provisions of section 1154(b) do not provide a substitute for medical-nexus evidence. . ." Clyburn v. West, 12 Vet. App. 296, 303 (1999). Section 1154(b) serves only to relax the evidentiary burden to establish incurrence of a disease or injury in service. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 5000, 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 (2012). Audiometric results were reported pursuant to the standards set by the American Standards Association (ASA) during the Veteran's service. Standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI) since November 1, 1967, however. As the Veteran's April 1966 entrance examination utilized the ASA, conversion to ISO-ANSI standards will be undertaken as necessary. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Background The STRs are negative for report of, treatment for, or diagnosis of hearing loss. At enlistment examination in March 1966, pure tone thresholds were not converted from graphical to numerical form. The raw Maico audiometer results, under ASA standards, indicate the following: for the left ear - 10 decibels or less at 500, 1000, 2000, and 3000 hertz; and somewhere between 10 and 30 decibels at 4000 hertz; and for the right ear - 10 decibels or less at 500, 1000, 2000, 3000, and 4000 hertz. Conversion from ASA standards to ISO-ANSI standards were not undertaken because only the raw, graphical data was available. However, in view of the contemporaneous follow-up audiometric testing undertaken in April 1966 that was expressed in numerical form on the Report of Examination at the time of enlistment in April 1966 and appears consistent with the March 1966 values, there is not prejudice to the Veteran and such conversion is unnecessary. Upon audiological evaluation on April 25, 1966, pure tone thresholds, in decibels, as converted from ASA standards to ISO-ANSI standards, were follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 15 LEFT 15 15 15 15 35 On the Report of Medical Examination upon enlistment, the Veteran was found to be deemed as fit for military duty on April 25, 1966, the same day this examination audiological examination was completed. No defective hearing was noted at this time, which coincided with his actual enlistment into active duty service. When examined in May 1967, whispered voice testing was 15/15 in both ears. Upon separation examination in February 1969, audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -5 0 -5 LEFT 0 -5 -5 -5 0 The Veteran filed a claim for service connection for hearing loss in February 2009 noting that he experienced combat noise exposure while in Vietnam. He also reported that he had been treated for hearing loss at the VA facility in Pensacola, Florida. VA records show that the Veteran was seen in February 2009 for hearing evaluation. He gave a history of inservice noise exposure as helicopter crew chief. There had been no post service noise exposure. On audiometric exam, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 35 75 LEFT 20 20 25 35 70 Speech audiometry revealed speech recognition ability of 92 percent in both ears. Listening strategies were discussed with the Veteran to include looking at the person speaking and reducing background noise. Additional VA audiometric examination was conducted in July 2009. The Veteran again reported inservice noise exposure. Specifically, his acoustic trauma was due to noise from radios, explosives, and combat. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 35 60 LEFT 20 20 10 35 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear. Bilateral sensorineural hearing loss was noted. The examiner, who reviewed the claims file, opined that current hearing loss was not related to active service, to include inservice acoustic trauma, in that his hearing was normal throughout his military career. Private and VA treatment records dated through 2012 reflect treatment for other conditions. Analysis At the outset, the Board notes that the Veteran's DD FORM 214 shows that he served in the Republic of Vietnam and received numerous awards and commendations, to include the Vietnam Service Medal and Air Medal. His MOS was in helicopter repair and maintenance. Therefore, his participation in combat is clearly established. The Board finds that the Veteran had exposure to acoustic trauma during service. 38 U.S.C.A. §§ 101(29)(A), 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(d) (2012). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. 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"). In this case, the medical evidence confirms that the Veteran currently has a bilateral hearing loss disability, as defined under 38 C.F.R. § 3.385, based on his audiometric findings dated in February 2009 and July 2009. As noted above, his inservice exposure to noise conceded. However, as also noted above, his STRs are negative for complaints or treatment for hearing loss as defined by VA regulations under 38 C.F.R. § 3.385. The Board is aware that upon entry into service there appeared to be some degree of hearing loss at the 4000 hertz level in the left ear. See Hensley, 5 Vet. App. 157 (The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). However, at the time of separation from discharge, hearing acuity evaluation was completely within normal limits for all applicable frequencies. In any case, the evidence is clear that the Veteran did not manifest any hearing impairment during service as defined by VA regulations under 38 C.F.R. § 3.385. Moreover, there is also no evidence of the Veteran having a compensable level of sensorineural hearing loss in either ear within one year of his 1969 separation from service. In fact, hearing loss complaints are not shown in the record until 2009, approximately 40 years after service discharge. Accordingly, entitlement to service connection for bilateral hearing loss based on the presumptions found at 38 C.F.R. §§ 3.307 and 3.309 must be denied. As indicated, exposure to acoustic trauma in service has been conceded in this case; however, this does not, in and of itself, enable a grant of service connection. Rather, the evidence must demonstrate that current hearing loss is related to such service. In this case, the Board notes that the record is also negative for a medical opinion finding a causal association or link between the Veteran's bilateral hearing loss and service. In this regard, the July 2009 VA examiner specifically opined that current bilateral hearing loss was not related to active service, noting that all audiometric tests conducted during service showed normal hearing acuity. The examiner reported that she reviewed the claims file. Thus, her opinion was based on the history provided by the Veteran, a review of the claims file, examination of the Veteran, and was supported by an accompanying rationale. There is no other competent medical opinion to refute these conclusions or to otherwise suggest a relationship between the Veteran's hearing loss and service. Although the Veteran is currently diagnosed with a bilateral hearing loss disability and exposure to acoustic trauma during service is conceded, the weight of the evidence is against a finding that his hearing loss was incurred in or otherwise related to service. Moreover, the Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In analyzing this claim, the Board considered the Veteran's statements as to etiology of his hearing loss and continuing symptoms since service discharge. The Veteran, as a layperson, is competent to report hearing difficulty, as it is readily observable. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, without the appropriate medical training and expertise, he is not competent to provide an opinion on a medical matter, such as the etiology of his hearing loss, because this requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, although the Veteran's statements as to the etiology of his hearing loss have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a medical nexus between his hearing loss and his period of service. Additionally, while the Veteran is competent to report his observable symptoms, the fact that he did not complain of hearing loss in service, was shown to have hearing within normal limits upon service separation, and is not shown in the record to have complaints, treatment, or a diagnosis of hearing loss until approximately 4 decades after service, weighs heavily against any claim that he has had problems ever since service. The Board finds his lay assertions of continuing symptoms to be less credible than the negative contemporaneous records. The Board recognizes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, with respect to a merits review, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. As such, the Board finds that the probative evidence is against the claim based on continuity of symptomatology. In view of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Service connection for bilateral hearing loss is denied. REMAND As to the issues of entitlement to service connection for DDD of the cervical spine, to include as secondary to the Veteran's service-connected lower back disability, entitlement to service connection for DJD of the left hip, and entitlement to a rating in excess of 10 percent for residuals of a meniscectomy of the right knee, and entitlement to a rating in excess of 10 percent for a lower back disability, a remand is again required. In support of these claims, in October 2012, the Veteran submitted copies of private treatment records dated from July 2011 through February 2012 showing epidural injections for his lumbar spine disorder on more than one occasion. These records also include report of left leg pain and the operative report of a total right knee arthroplasty. The foregoing evidence was received by the Board in October 2012, subsequent to the issuance of the September 2012 supplemental statement of the case (SSOC) and transfer of the claims file to the Board. This evidence was not accompanied by a waiver of initial consideration by the agency of original jurisdiction (AOJ) prior to submission to the Board. See Disabled American Veteran v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (absent a waiver, the Board may not adjudicate a claim based on evidence which has not been previously considered by the AOJ); 38 C.F.R. §§ 19.37, 20.1304 (2012). The Board solicited a waiver of this evidence by a letter dated February 26, 2013. On April 10, 2013, the Veteran responded that he desired the case to be remanded back to the AOJ for review. Under the circumstances, the issues on appeal that relate to the evidence submitted must be remanded to the AOJ for initial consideration. Id. Accordingly, the case is REMANDED for the following action: The AMC/RO shall readjudicate the Veteran's claims of entitlement to service connection for DDD of the cervical spine, to include as secondary to the Veteran's service-connected lower back disability, entitlement to service connection for DJD of the left hip, and entitlement to a rating in excess of 10 percent for residuals of a meniscectomy of the right knee, and entitlement to a rating in excess of 10 percent for a lower back disability, in light of the additional evidence received by VA in October 2012. In adjudicating the claims, all additional evidence submitted since the September 2012 SSOC concerning the claims must be addressed. Any indicated tests, if indicated, should be accomplished. If any benefit sought on appeal is not granted, the Veteran and his representative must be provided with a SSOC and given an opportunity to respond before returning the claims file to the Board for further appellate review. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs