Citation Nr: 1318266 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 11-23 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for flat feet. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a back disability, to include as due to flat feet. 4. Entitlement to a higher initial rating for left lower extremity peripheral neuropathy, rated as 10 percent disabling prior to October 22, 2012, and as 20 percent disabling from that day forward. 5. Entitlement to a higher initial rating for right lower extremity peripheral neuropathy, rated as 10 percent disabling prior to October 22, 2012, and as 20 percent disabling from that day forward. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from January 1955 to March 1964 and from May 1964 to July 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from March and August 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which, in pertinent part, denied entitlement to service connection for bilateral hearing loss, service connection for bilateral flat feet, and service connection for a back disability and granted entitlement to service connection for left and right lower extremity peripheral neuropathy, with a 10 percent disability rating assigned for each, effective October 5, 2010. In a November 2012 supplemental statement of the case (SSOC), an increased rating of 20 percent for right and left lower extremity neuropathy was granted, effective October 22, 2012. In April 2013, the Veteran and his spouse provided testimony during a hearing before the undersigned at the RO. A transcript of the hearing is of record. As explained below, the Veteran stated during the hearing that he wanted to withdraw the issues regarding the increased initial ratings for right and left lower extremity peripheral neuropathy. 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). The issue of entitlement to service connection for a back disability 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. During the April 2013 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal with regard to the issue of entitlement to a higher initial rating for left lower extremity peripheral neuropathy. 2. During the April 2013 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal with regard to the issue of entitlement to a higher initial rating for right lower extremity peripheral neuropathy 3. Flat feet disability was incurred during active duty service. 4. A bilateral hearing loss disability was first demonstrated long after service and was not incurred during or as a result of noise exposure in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to a higher initial rating for left lower extremity peripheral neuropathy have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of the appeal regarding entitlement to a higher initial rating for right lower extremity peripheral neuropathy have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for service connection for flat feet have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1154(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS During the April 2013 hearing, the Veteran stated that he would like to withdraw his appeal for entitlement to higher initial ratings for left and right lower extremity peripheral neuropathy. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. Withdrawal may be made by the claimant or by his or her authorized representative. 38 C.F.R. § 20.204. The appellant has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. As such, the Board does not have jurisdiction to review his claim and the appeal for entitlement to higher initial ratings for left and right lower extremity peripheral neuropathy is dismissed. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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. Those five elements include (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding the claim for service connection for flat feet, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Regarding the bilateral hearing loss claim, the Veteran was notified of the evidence needed to substantiate his claim for service connection in a letter issued in October 2010, prior to the initial adjudication of the claim. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the October 2010 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. Although the Veteran reported treatment at the Oberlin Clinic, a January 2011 response to a request for records indicated that records for such treatment are unavailable. Additionally, the Veteran was provided a proper VA examination in August 2011 to assess the nature and etiology of his bilateral hearing loss. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the August 2011 VA examination and medical opinion obtained in this case is more than adequate, as it is predicated on a full reading of the available service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the bilateral hearing loss issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the April 2013 hearing, the undersigned identified the issues on appeal and asked the Veteran about his contentions concerning service connection. Further, the Veteran provided testimony as to the symptoms and history of his bilateral hearing loss, flat feet, and back disabilities and the treatment received for the disabilities. The duties imposed by Bryant were thereby met. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 organic diseases of the nervous system (sensorineural hearing loss), are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation 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). 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); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Flat Feet The Veteran contends that he incurred bilateral flat feet during service. Post-service private treatment records document a current diagnosis of flat feet. During the Board hearing, the Veteran and his spouse reported that he was given arch supports by medical providers to treat flat feet during boot camp in 1955. His wife testified that he had had flat feet when they were married in 1957. The Veteran and his spouse are competent to report symptoms and diagnoses such as foot pain and flat feet as well as when they began or when they were told about them. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board acknowledges that the Veteran denied foot trouble in a May 1964 report of medical history and his feet were found to be normal upon separation according to a June 1974 examination report. Moreover, there is a significant gap in time between service and the first indication of flat feet. Nevertheless, the Veteran's service treatment records are missing, and his lay testimony has been consistent and is considered to be credible. There is no other evidence weighing against the claim, and therefore, the evidence is in favor of finding that current flat feet began during service. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral flat feet is granted. 38 U.S.C.A. § 5107(b). Bilateral Hearing Loss Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385 (2012), which provides that service connection for impaired hearing shall be established when hearing status meets certain pure tone and speech recognition criteria. Hearing loss status will be considered a disability for the purposes of service connection when the auditory thresholds in 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 when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran received a VA examination in August 2011, where puretone thresholds at 4000 Hertz were demonstrated to be above 40 decibels bilaterally. Therefore, a current bilateral hearing loss disability under 38 C.F.R. § 3.385 has been demonstrated. The Veteran contends that he incurred bilateral hearing loss as a result of in-service acoustic noise exposure from aircraft. His statements regarding in-service noise exposure are consistent with the conditions of his service as a Parachute Rigger, or Aircrew Survival Equipment Man as it was called after 1965, and are found to be credible. Accordingly, though the claimed noise exposure is not shown in the service treatment records, its incurrence is conceded in accordance with the provisions of 38 U.S.C.A. § 1154(b). Two of the three elements necessary for service connection-current bilateral hearing loss and an in-service injury-are thus demonstrated. Service connection, however, also requires a nexus between current symptoms and such in-service noise exposure or a continuity of symptomatology. Unfortunately, such has not been demonstrated here. Service treatment records include a May 1964 report of medical history, in which the Veteran denied ear, nose, and throat trouble. An audiogram from the Veteran's June 1974 separation examination revealed bilateral hearing loss to be within normal limits. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 10 LEFT 10 5 5 10 15 Although the service treatment records are missing, at no time in the service treatment records was an auditory threshold in any of the frequencies 40 decibels or greater, the auditory thresholds for at least three of these frequencies 26 decibels or greater, or speech recognition scores using the Maryland CNC Test less than 94 percent. Moreover, the Veteran reported during the Board hearing that he wore hearing protection throughout service and he did not recall having any issues with the gear. The August 2011 VA examiner found that the Veteran's current bilateral hearing loss was not caused by or the result of military noise exposure. As a rationale, the examiner noted that the audiogram conducted at the Veteran's separation examination was normal for all rating frequencies. The Board also notes that the first indication of hearing loss submitted to VA was the Veteran's claim for service connection in October 2010, almost 40 years after his discharge. In fact, he filed a claim for hypertension in July 1989 without mention of any hearing loss symptoms. In support of his claim, he submitted a July 2007 private audiology examination, where he sought treatment for symptoms of dizziness, balance issues, and nausea and stated that he did not have any difficulty with his hearing at that time. Although the audiogram did reveal qualifying hearing loss at 4000 Hertz, it was conducted 33 years after discharge. The fact that the Veteran did not report hearing loss symptoms to VA for almost 40 years despite filing a claim for another disability and the fact that hearing loss was not demonstrated until 33 years after discharge weigh heavily against the claim. The only evidence in favor of a positive nexus between current hearing loss and in-service noise exposure are the Veteran's contention. The Veteran and his spouse are competent to report symptoms such as hearing loss and when they began or when they were told about them. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran and his spouse, however, have not reported that they noticed his hearing loss during service nor have they reported a continuity of symptomatology. In fact, he and his wife testified at the Board hearing that they were not sure when it started and they thought hearing loss was a gradual onset disability. It would require medical expertise to say that the current hearing loss, first shown long after service, was the result of in-service noise exposure, as opposed to some other cause. There is no evidence that the Veteran or his wife possess such expertise. Hence, they would not be competent to say that his current hearing loss with onset long after discharge is related to service. The only competent opinion, that of the VA examiner, is against the claim. That opinion considered an accurate history and was supported by an adequate rationale. Therefore, the weight of the evidence is against a link between the current hearing loss and service, and service connection is denied. In arriving at this decision, the Board has considered the benefit-of-the-doubt rule. 38 U.S.C.A. § 5107(b). Because there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER The claim for entitlement to a higher initial rating for left lower extremity peripheral neuropathy is dismissed. The claim for entitlement to a higher initial rating for right lower extremity peripheral neuropathy is dismissed. Service connection for bilateral flat feet is granted. Service connection for bilateral hearing loss is denied. REMAND Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service include credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran contends that his current low back pain began during service, or, in the alternative, is proximately related to the now service-connected bilateral flat feet. The only service treatment records available include a May 1964 report of medical history, where he did not report any back trouble, and a June 1974 separation examination, where his spine and musculoskeletal system were found to be normal. In addition, there are several post-service VA treatment records demonstrating lumbar spine strains or sprains. In a September 2011 private treatment record, a doctor of osteopathic medicine stated that the Veteran's back pain was as likely as not from his flat feet or that his flat feet were" a main contributor to the problem." It does not appear, however, that the private physician reviewed the claims file or the post-service evidence of multiple lumbar spine injuries. Therefore, a VA examination is necessary to determine the etiology of any currently diagnosed back disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with a VA spine examination to determine whether any current disability is related to service. The claims folder, and any relevant records contained in a virtual file, must be sent to the examiner for review. The examiner is requested to list all current spine disabilities. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that any current spine disability had onset in service or is otherwise related to a disease or injury in service. In addition, the examiner should provide an opinion as to whether any spine disability was either (a) proximately caused by or (b) proximately worsened by his service-connected bilateral flat feet. If the examiner states that a spine disability is aggravated by the flat feet disability, although not directly caused by it, the examiner should indicate the degree of additional impairment caused by the flat feet disability beyond the natural progress of the disease prior to the impairment, in terms conforming to the rating schedule. The examiner should provide a rationale for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a rationale for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 2. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 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 2002 & Supp. 2012). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs