Citation Nr: 1318422	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  11-05 649	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

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

2.  Entitlement to service connection for peripheral vascular disease (PVD) of the bilateral lower extremities, to include as secondary to service-connected degenerative disc disease of the lumbar spine.

3.  Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine.

4.  Entitlement to an effective date earlier than June 19, 2009, for the grant of service connection for degenerative disc disease of the lumbar spine.  


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel


INTRODUCTION

The Veteran served on active duty from December 1953 to November 1955.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of January 2008 and September 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

The January 2008 decision denied service connection for degenerative disc disease of the lumbar spine, bilateral hearing loss, and PVD.  In February 2008, the Veteran submitted a letter titled "Notice of Disagreement," and indicated that the January 2008 rating decision was "erroneous, flawed, and fallacious."  In a letter dated in March 2008, VA requested that the Veteran clarify as to which disabilities he wished to appeal.  The Veteran did not respond.  As discussed further below, the Board liberally reviews this Notice of Disagreement as applicable to all issues denied in the January 2008 rating decision.  As such, the bilateral hearing loss and PVD issues will be considered original claims and not claims to reopen.  

The September 2010 rating decision granted service connection for degenerative disc disease of the lumbar spine.  A 20 percent rating was assigned, effective June 19, 2009.  In November 2010, the Veteran appealed the initial rating assigned as well as the effective date for the grant of service connection.  

The Veteran was previously represented by private counsel, and the Veteran withdrew his power of attorney in 2012.  Counsel submitted a letter to VA in March 2013 confirming that he no longer represents the Veteran.  

In addition, the Board notes that in multiple statements the Veteran has asserted that his degenerative disc disease of the lumbar spine solely or in conjunction with his other service-connected disabilities render him unemployable, thus raising a claim for a total disability evaluation based on individual unemployability (TDIU). However, the Board notes the TDIU claim was denied in a January 2012 rating decision.  The claims file does not indicate the Veteran has since expressed a desire to appeal this claim as required pursuant to 38 C.F.R. § 20.1103 (2012).  In reaching that conclusion, the Board has considered the evidence submitted since the January 2012 rating decision, including the Veteran's lay statements and his hearing testimony.  Therefore, the TDIU issue is not on appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting in a footnote that claims for increased evaluations and TDIU claims may be separately adjudicated).

In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA.  The Board has reviewed both the paper and electronic claims files in rendering this decision.

It appears that the Veteran has raised the issue of having a disability caused by asbestos exposure; this has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for any appropriate action.  

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 PVD of the bilateral lower extremities and entitlement to an increased rating for his low back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  There is an approximate balance of positive and negative evidence as to whether the Veteran has a bilateral hearing loss disability that was incurred in service.

2.  In February 1956, the RO originally denied the Veteran's claim of entitlement to service connection for a lumbar spine disorder.  He did not perfect an appeal as to this decision.  

3.  In July 2002, the RO denied the Veteran's request to reopen his previously denied service connection claim for a lumbar spine disability.  He did not perfect an appeal as to this decision.

4.  On June 8, 2007, the RO received the Veteran's claim to reopen service connection for a lumbar spine disorder.  

5.  On January 14, 2008, the RO denied request to reopen his previously denied service connection claim for a lumbar spine disability.  In February 2008, he properly filed a notice of disagreement to the denial.  

6.  On September 20, 2010, the RO granted service connection for degenerative disc disease of the lumbar spine and assigned a 20 percent rating, effective June 19, 2009.  


CONCLUSIONS OF LAW

1.  Resolving doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2.  The criteria for the assignment of an effective date of June 8, 2007, but not earlier, for the grant of service connection for depressive disorder of the lumbar spine have been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

VCAA letters dated in July 2007, August 2007, June 2009, October 2010 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The letters also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO 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, the VLJ fully explained the issues on appeal during the hearing and generally discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims.  Significantly, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

Additionally, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs) and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2012).  

In this case, the Veteran was provided a VA examination for his bilateral hearing loss claim most recently in April 2011.  The examiner considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducting a physical examination.  Based on the foregoing, the examiner concluded that the Veteran's bilateral hearing loss was not due to or aggravated by an event, disease, or injury incurred during active service.  Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria

      A.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110; 1131, 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

Service connection may be awarded for certain chronic diseases based on a continuity of symptomatology since service.  38 C.F.R. § 3.303(b).  A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012).  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, 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 (2012).

When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  See Hensley, supra.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

      B.  Earlier Effective Date

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West Supp 2012); 38 C.F.R. § 3.151(a) (2012).  The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p) (2012).

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (2012).

If a Veteran files an application for service connection with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board.  See 38 U.S.C.A. §§ 7104, 7105 (West 2002).  If he does not initiate an appeal within one year, or if he initiates a timely appeal and the appeal is denied, the disallowance becomes final.  See 38 C.F.R. §§ 20.302, 20.1100, 20.1103 (2012).  With exceptions not here applicable, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 C.F.R. § 3.400(q), (r) (2012).  Specifically, the effective date of an award of disability compensation based upon the submission of new and material evidence other than service department records received after final disallowance will be the date of receipt of the new claim or the date that entitlement arose, whichever is later.  38 C.F.R. § 3.400(q)(1)(ii) (2012).

Factual Background and Analysis

      A.  Service Connection

The Veteran contends that he experienced acoustic trauma in service and has experienced bilateral hearing loss since.  The Veteran's DD Form 214 shows that he served in the infantry.

The Veteran's main contentions are that he was in close proximity to a cannon/recoilless rifle during military service when it was discharged.  He recalled that he could not hear for several days, and this caused difficulty performing his duties as a radio operator.  

A review of the Veteran's service treatment records, including his enlistment and separation physical examinations, shows no complaints of any bilateral hearing loss.  Whispered voice testing at induction and discharge was 15/15.  

Just after discharge from service, the Veteran underwent an audiological examination in January 1956.  Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
5
X
0
LEFT
0
0
5
X
0

Of note, at 8000 Hz, the Veteran's thresholds were 25 decibels on the right and 30 on the left.  At the time, he sought service connection for right ear tinnitus only.  

In a July 1964 letter, the Veteran described being exposed to extreme noises while on the firing ranger in Germany.  He tried using cotton in his ears for hearing protection, but he could not follow orders with the cotton in his ears.  The range sergeant requested that he remove the cotton.  Additionally, he was the radio operator for his division.  

During an April 2007 private audiological examination the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
15
25
45
LEFT
10
40
35
60
85

This examination did not include any discussion/opinion related to the Veteran's claimed bilateral hearing loss.  

In August 2007, the Veteran's spouse submitted a statement related to his claimed hearing loss.  She recalled him complaining about loud noise exposure during service with resultant tinnitus.  She recalled the Veteran describing training exercises in 1954 and 1955 in Germany when he incurred additional hearing problems.  She further indicated that the Veteran confided to her that he had constant hearing distress since service.  

The Veteran was afforded a VA audiological examination in October 2007, at which time puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
10
20
45
LEFT
20
30
25
55
49

Speech recognition testing revealed 94 percent in the right ear and 82 percent in the left ear.  

After review of the claims file, examination of the Veteran, and consideration of his reported medical history, the examiner opined that the Veteran's current hearing loss is not related to his military service.  In reaching this conclusion, the examiner noted the lack of complaints of hearing problems in service and the normal audiological examination within 6 months of discharge from the military.  She indicated that there is no scientific basis to support that his current bilateral hearing loss is related to noise exposure from 50 years ago.   

In October 2009, the Veteran's private ENT indicated that the Veteran had mild to severe high frequency sensorineural hearing loss that is in a pattern consistent with a noise-induced injury.  


Audiological examination revealed puretone thresholds, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
30
50
LEFT
25
40
35
55
85

Speech recognition scores were 100 percent in the right ear and 88 percent in the left.  

The Veteran explained his noise-exposure history to his treating ENT, and following review of the record and examination, the ENT professional opined that the Veteran's hearing loss is as likely as not the result of his military noise exposure.  

In an October 2010 private treatment record, the Veteran again related his military noise exposure and subsequent hearing problems.  He denied any family history of bilateral hearing loss or a history of other loud noise exposure.  The treating professional diagnosed the Veteran as having bilateral high frequency sensorineural hearing loss.  He opined "within a reasonable degree of medical certainty" that the Veteran's bilateral hearing loss was likely due to his in-service noise exposure.  

In April 2011, the Veteran was afforded another VA audiological examination, during which puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
30
35
55
LEFT
35
45
30
60
90

Speech audiometry revealed speech recognition ability of 80 percent, bilaterally.  During the examination, the Veteran described his in-service noise exposure, and the examiner noted the relevant hearing tests that were performed.  

Following review of the clinical evidence, audiological examination, and review of the Veteran's hearing loss history, the examiner opined that "it would seem" like his bilateral hearing loss is less likely than not caused by or a result of his military noise exposure.  In reaching this conclusion, the examiner relied on the fact that the Veteran's post-service audiological examination was within normal limits in the right ear and mild in the left.  She also noted that the Veteran's extensive account of hazardous noise and temporary hearing loss would confirm that he was exposed to loud noises in service, but the post-service reading shows that it shifted back to normal in the right ear and showed only a mild loss at 8000 Hz in the left.  

The Veteran also submitted a copy of a letter that he sent to his parents while he was on active duty.  In pertinent part, he indicates that he was having problems hearing because "everything sounds so far away."  He also described the incident in which a recoilless rifle mounted on a jeep went off right near him.  He stated that since that time he has had difficulty hearing.  

As an initial matter, the April 2007 (and subsequent) audiological findings support the conclusion that the Veteran has a bilateral hearing loss disability for VA compensation purposes.  38 C.F.R. § 3.385 (2012).

Therefore, the question to be decided in the present appeal is whether such hearing loss is associated with the Veteran's active duty.  With respect to whether the Veteran experienced an in-service disease or injury, he asserts that he was exposed to acoustic trauma from the sounds of recoilless rifles and artillery fire while performing his duties.  In addition, he served in an infantry regiment.  Based on this evidence, it is clear that the circumstances of the Veteran's service would have exposed him to acoustic trauma during service.  Thus, the Board does not dispute that he likely experienced acoustic trauma during service.

With respect to whether there is a nexus or relationship between the Veteran's current bilateral hearing loss disability and tinnitus and his military service, the Board acknowledges that the October 2007 and April 2011 VA examiners stated that the Veteran's hearing loss was unrelated to his acoustic trauma during service.  In addition, there are two positive nexus opinions, dated in October 2009 and October 2010 linking the Veteran's current bilateral hearing loss to his noise exposure during military service.  Both the positive and negative opinions include a detailed rationale for their conclusions and are supported by the evidence of record.  

The Board also notes that the Veteran is competent to describe the circumstances surrounding his in-service noise exposure and to report difficulties hearing and symptoms of tinnitus as such comes to him through his senses and, as such, requires only personal knowledge rather than medical expertise.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lay evidence-as, for example, the Veteran's contentions in the present case-does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence).

The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno, 6 Vet. App. at 469.  

As noted, the Veteran is competent to describe his in-service noise exposure and current difficulty hearing in his bilateral ears, and the Board finds that his assertions are credible.  He is also competent to report that he has experienced hearing problems since service separation.  The Board has no reason to doubt the Veteran's assertions that he incurred acoustic trauma during service.  

After a review of the evidence of record as a whole, and in light of the foregoing, the Board is satisfied that the Veteran's current bilateral hearing loss disability cannot be disassociated from his in-service exposure to acoustic trauma.  Thus, the medical and lay evidence for the claim and the evidence against the claim are at least in equipoise.  Accordingly, the benefit-of-the-doubt rule applies and service connection for bilateral hearing loss disability is warranted.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
      
B.  Earlier Effective Date

As noted above, service connection for degenerative disc disease of the lumbar spine was awarded in a September 2010 rating decision.  A 20 percent rating was assigned, effective June 18, 2009.  The Veteran has appealed the effective date for the grant of service connection.  He is specifically requesting that his claim be effective beginning upon service separation in 1955.  Based upon a complete review of the evidence on file, and for reasons and bases expressed immediately below, the Board finds that the assignment of an effective date of June 8 2007, but no earlier, is in fact warranted for the service-connection award at issue.

As has been discussed in the legal criteria section above, the assignment of an effective date for service connection is in essence governed by the date of filing a claim with VA.  See 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012).

By way of background, the Veteran originally applied for service connection for a back disability in December 1955.  Service connection for a back disability was denied in a February 1956 decision.  The Veteran did not appeal the denial.  As such, the February 1956 decision became final.  38 C.F.R. §§ 3.104, 20.1103 (2012).  

He filed a claim to reopen in May 2002.  VA requested that he submit new and material evidence to reopen his claim, but he did not.  As such, the RO denied the Veteran's claim to reopen in a July 2002 decision finding that there was neither new, nor material evidence to support reopening of his claim.  This decision also became final.  Id.

In light of these final decisions, the Board's inquiry is therefore limited by operation of law to whether the Veteran filed a claim of entitlement to service connection for a back disability after the July 2002 decision, and before the current effective date of the award in question, June 18, 2009.

VA received the Veteran's most recent claim to reopen his previously denied service connection claim for a low back disability on June 8, 2007.  The RO found that new and material evidence had not been received to reopen the previously denied claim for service connection for a back disability, and denied it in a January 2008 rating decision.  At that time, the RO also denied service connection for bilateral hearing loss, PVD, and tinnitus.  

In February 2008, the Veteran filed a document entitled "Notice of Disagreement" and specifically alleged that the January 2008 rating decision was "erroneous, flawed, and fallacious."  In March 2008, the RO requested that the Veteran clarify which issues he was appeal.  He did not respond.  

The Board notes that VA must liberally construe all documents filed by the veteran when considering whether a statement that could constitute a notice of disagreement (NOD) takes the proper form.  See EF v. Derwinski, 1 Vet. App. 324, 326 (1991). With this in mind, in February 2008, the Veteran submitted a statement indicating disagreement with the January 2008 rating decision.  The Board construes as a timely NOD with respect to the January 2008 rating decision as to all issues denied therein. 

The Board accordingly finds that the Veteran's date of claim is actually June 8, 2007, and the Veteran's award of service connection for degenerative disc disease of the lumbar spine should be made effective on that date.  

The Board appreciates the Veteran's multiple submissions of copies of the acknowledgement of receipt of claim dated in 1955.  The Board does not disagree with the Veteran's contention that he filed a claim of service connection for a back disability in 1955.  The Board finds, however, that this claim of service connection was denied in February 1956 and the claim to reopen was denied in a July 2002 decision.  These decisions became final.  As such, the earliest effective date possible for the Veteran's claim to reopen for service connection for a low back disability is June 8, 2007.  

Based on the evidence discussed above, the Board finds that an effective date of June 8, 2007, is warranted for the award of service connection for the Veteran's low back disability.  To this extent only, the benefit sought on appeal is granted.


ORDER

Service connection for bilateral hearing loss disability is granted, subject to the laws and regulations governing the award of monetary benefits.  

Entitlement to an effective date of June 8, 2007, but not earlier, for the grant of service connection for degenerative disc disease of the lumbar spine is granted.


REMAND

Upon preliminary review of the record, the Board finds that further evidentiary development is required prior to adjudication of the Veteran's service connection claim for PVD of the bilateral lower extremities and increased rating for degenerative disc disease of the lumbar spine.  

A review of the Veteran's service treatment records shows complaints for numbness in the feet.  He was treated for bilateral pes planus and symptoms of weak foot.  He currently reports bilateral lower extremity numbness upon walking any distance or standing.  He contends that these symptoms are secondary to his service-connected low back disability.  The Veteran has not, however, been afforded a VA examination in conjunction with the claimed PVD.  

During the Veteran's March 2013 hearing, he reported recent treatment at the VA walk-in clinic in Chattanooga, Tennessee.  The Board has reviewed the claims file and Virtual VA and finds no records of the Veteran's alleged treatment at this facility.  As such, the claim must be remanded to obtain any outstanding VA or private treatment records related to his low back and bilateral lower extremity disabilities.

Additionally, the Veteran's most recent examination regarding his back disability was in August 2010.  He was afforded a VA General Medical Examination (GME) in February 2011 regarding unemployability.  This GME did not, however, did not include a detailed examination of the Veteran's spine, and the Veteran has reported progressively worsening low back symptoms.  

Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required.  See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4).  See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991).

In light of the Veteran's contentions that he has numbness of the bilateral lower extremities due to his low back disability, and his contentions that his low back disability has essentially worsened since his last VA examination, the Board finds that the Veteran should be afforded a comprehensive VA examination to determine the current severity of his low back disability as well as determine the etiology of his claimed bilateral lower extremity 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.  The RO/AMC should obtain any outstanding VA or private treatment records related to the Veteran's low back disability and bilateral lower extremity problems.  Records should be specifically requested from the Chattanooga CBOC from August 2011 to the present.  

2.  After obtaining any available records noted above, the RO should then schedule the Veteran for a physical examination to determine the current severity of his lumbar spine disability.  The Veteran's VA claims folder, including any pertinent evidence in Virtual VA, and a copy of this Remand should be made available to, and should be reviewed by the examiner.  

The examiner should specifically identify (1) range of motion of the Veteran's lumbar spine, including motion accompanied by pain, in degrees; and (2) functional impairment, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use.  If the Veteran's lumbar spine is ankylosed, this should be made clear.

A report should be prepared and associated with the Veteran's VA claims folder.

3.  The RO/AMC should schedule the Veteran for a physical examination to assess the nature and etiology of his claimed PVD/numbness in the bilateral lower extremities.  The examiner should review the Veteran's VA claims folder, including any pertinent evidence contained in Virtual VA, and a copy of this Remand; and after a thorough examination, should provide opinions, with supporting rationale, as to the following questions:

a.)  Is it as likely as not (50 percent or better probability) that the Veteran has a current disability of the bilateral lower extremities related to his military service?

b.)  Is it as likely as not (50 percent or better probability) that the Veteran has a current disability of the bilateral lower extremities that was caused at least in part by his service-connected degenerative disc disease of the lumbar spine?

c.)  Is it as likely as not that the Veteran has a current disability of the bilateral lower extremities that was aggravated beyond its normal progression by his service-connected lumbar spine disability?

The examiner is informed that "aggravation" is defined for compensation purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. 

A report should be prepared and associated with the Veteran's VA claims folder.  The examiner is requested to provide the basis for all opinions reached.  If the examiner is unable to supply the requested opinions, he or she should provide an explanation for why such opinion could not be rendered. 

4.  Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should review the record and adjudicate the Veteran's service connection for a disability of the bilateral lower extremities and increased rating for degenerative disc disease of the lumbar spine.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board for further consideration, if otherwise in order.

By this remand, the Board intimates no opinion as to any final outcome warranted.  No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs