Citation Nr: 1314437	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  09-11 230	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to service connection for a skin disability of the left foot.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

D. Schechter, Counsel


INTRODUCTION

The Veteran served on active military duty from August 2000 to December 2003.

This appeal comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  

While the Veteran initially requested a hearing before the Board, by a signed submission in May 2009 he elected instead to have a hearing before an RO Decision Review Officer (DRO).  Accordingly, he was afforded a hearing before a DRO in July 2009.  A transcript of the hearing is in the claims files.

The issue of entitlement to service connection for a skin disability of the left foot is addressed in the REMAND that follows the ORDER section of this decision.


FINDINGS OF FACT

No hearing loss disability in either ear has been present at any time during the pendency of this claim.


CONCLUSION OF LAW

Bilateral hearing loss disability was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.   

They also require VA to 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 and the claimant's representative, if any, 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 the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), 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).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.   Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the Veteran was provided all required notice in a letter sent in February 2007, prior to the RO's initial adjudication of the claim.  

In Bryant v. Shinseki, 23 Vet App 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2012) requires that the adjudicator who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the July 2009 Decision Review Officer (DRO) hearing conducted in this case, the DRO effectively outlined the issues on appeal and suggested that any evidence tending to support the claims that had not yet been submitted should be, which necessarily included in this case evidence of current hearing loss disability and any causal link between the Veteran's service and any such hearing loss.  To the extent this was not done by the DRO, the Veteran and his representative at the hearing demonstrated sufficient actual knowledge of what is required.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the DRO hearing.

The record also reflects that all pertinent records identified by the Veteran have been obtained and that the Veteran was provided an appropriate VA examination in May 2007.  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.  In sum, the Board is also satisfied that the RO has complied with VA's duty to assist the Veteran in the development of the facts pertinent to this claim.

II.  Legal Criteria

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

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.




Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

III.  Factual Background and Analysis

The Veteran contends that service connection is warranted for bilateral hearing loss because it was caused by his exposure to excessive noise in service.

The Veteran service treatment and examination records reflect some variance in hearing acuity, including a noted improvement in hearing acuity between audiometric testing in January 2001 and audiometric testing in December 2001.  However, service records do not show that the Veteran was found to have sufficient hearing impairment in either ear to qualify as a disability. 

The Veteran was afforded an official QTC examination in May 2007 to address hearing loss.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
Average
1000 - 4000
RIGHT
20
20
20
15
15
18
LEFT
20
20
20
15
20
19

Speech audiometry revealed speech recognition ability of  94 percent in the right ear and of 100 percent in the left ear.

The examiner noted that testing revealed normal hearing levels in the left ear with speech recognition test findings consistent with those audiometric results.  The examiner also noted that the Veteran had hearing within normal limits in the right ear with excellent speech recognition in that ear.  

The examiner reviewed the Veteran's test results as well as his statements, and considered the Veteran's assertion of hearing loss, but concluded that objective evidence did not support the claim of loss of hearing, with audiometric findings within normal limits bilaterally.  

The results of the May 2007 evaluation show that the Veteran does not have sufficient hearing impairment in either ear to qualify as a disability.  The Veteran has not asserted and the record does not otherwise reflect any increase in hearing loss following that examination.  Moreover, there is no other evidence showing the presence of hearing loss disability in either ear.  While the Board has considered the Veteran's contentions and has no reason to doubt his credibility, the Veteran does not possess the expertise required to establish that he has sufficient hearing impairment to qualify as a disability under 38 C.F.R. § 3.385.  Moreover, even if the Veteran were competent to state that he has sufficient hearing impairment to qualify as a disability, the results of tests administered by a trained audiologist would carry greater weight than the Veteran's statements.

Accordingly, this claim must be denied.  In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.


ORDER

Service connection for bilateral hearing loss disability is denied.  

REMAND

The Veteran contends that he is entitled to service connection for a skin disorder, which he characterized in his VA Form 9, submitted in April 2009, as jungle rot of the left foot.  

At his July 2009 hearing, the Veteran reported that he had a hole in his foot that was persistent for some time following service, but that the hole eventually healed.  However, he claims that he continues to have dead and dry skin on his left foot and that these ongoing problems are related to wearing boots and going so long without a shower in service. 

The evidence of record does not include any medical evidence specifically addressing whether the claimed skin disability of the left foot is related to the Veteran's active service.  Therefore, the Board has determined that the Veteran should be for a VA examination to determine the nature and etiology of any skin disorder of the left foot present during the period of this claim.   

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim.

2.  Thereafter, afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of all skin disorders of the left foot that have been present during the period of the claim.  The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner.  Any indicated studies should be performed.

Based upon the review of the Veteran's pertinent history and the examination results, the examiner should identify each skin disorder of the left foot that has been present during the period of the claim.  With respect to each such disorder, the examiner should state whether there is a 50 percent or better probability that the disorder originated in service or is otherwise etiologically related to service.  For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian.

The rationale for all opinions expressed must also be provided.  If any required opinion cannot be provided, the examiner should explain why.

3.  Undertake any other indicated development.

4.  Thereafter, readjudicate the remanded claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto.  

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).


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This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court 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).



______________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs