Citation Nr: 1319743	
Decision Date: 06/19/13    Archive Date: 06/27/13

DOCKET NO.  09-43 655	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include depression.

2.  Entitlement to service connection for left ear hearing loss.

3.  Entitlement to service connection for gouty arthritis of the ankles, knees, elbows, hands, and metatarsophalangeal joints of the feet.

4.  Entitlement to service connection for a sleep disorder.

5.  Entitlement to service connection for gastritis.

6.  Entitlement to service connection for hemorrhoids.

7.  Entitlement to service connection for hypertension.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

The appellant had active duty for training (ACDUTRA) from August 1971 to February 1972, with subsequent service in the Army National Guard until discharge in October 2004.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claims.  The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision.

The issues of entitlement to service connection for an acquired psychiatric disorder, gouty arthritis, a sleep disorder, gastritis, hemorrhoids, and hypertension 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.



FINDING OF FACT

The appellant does not have left ear hearing loss disability for VA compensation purposes.


CONCLUSION OF LAW

Left ear hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice 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; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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.  The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486.  

A letter dated in July 2008 discussed the evidence necessary to support the appellant's claims for service connection.  The appellant was invited to submit relevant evidence.  The evidence of record was listed and the appellant was told how VA would assist him in obtaining additional relevant evidence.  This letter also advised the appellant of the manner in which VA determines disability ratings and effective dates.

The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim.  

With respect VA's duty to assist, the Board notes that identified  records have been associated with the claims file.  A VA examination has been carried out.  The Board finds that the examination is adequate in that the examiner reviewed the record, interviewed the appellant, and performed an appropriate examination prior to providing his conclusions.  The report of record is thorough and consistent with contemporaneous treatment records.  The appellant has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims.  The Board is also unaware of any such outstanding evidence or information.  Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.

For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.

Analysis

Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110  (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303.  To establish a right to compensation for a present disability, a claimant must show: "(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"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

With specific regard to National Guard and Reserve service, service connection may be granted for disability resulting from either disease or injury incurred in, or aggravated while performing, active duty for training (ACDUTRA).  With respect to time periods of inactive duty training (INACDUTRA), service connection may only be granted for injury so incurred or aggravated.  38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. 
§ 5107(b) (West 2002). 
With specific regard to claims involving hearing loss, the Court of Appeals for Veterans Claims (CAVC) has observed that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley  v. Brown, 5 Vet. App. 155, 159 (1993).  However, 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, 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).

On enlistment examination in August 1971, audiometric testing revealed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
LEFT
15
10
5
Not tested
15

The appellant was deemed qualified for enlistment.

On release from active duty for training in January 1972, the following puretone thresholds were elicited:




HERTZ



500
1000
2000
3000
4000
LEFT
0
0
0
0
0

On reenlistment examination in August 1980, audiometric testing revealed the following puretone thresholds:
 



HERTZ



500
1000
2000
3000
4000
LEFT
10
15
5
15
15

At that time, the appellant denied hearing loss and ear trouble.

On examination in August 1988, the appellant denied ear trouble and hearing loss.  The following puretone thresholds were elicited:




HERTZ



500
1000
2000
3000
4000
LEFT
20
10
5
15
20

When reporting his medical history in February 1996, the appellant denied ear trouble and hearing loss.

Likewise, in October 2001 the appellant denied hearing loss and ear trouble.  Examination at that time revealed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
LEFT
20
10
20
25
30

On VA examination in February 2009, the appellant reported a history of left ear hearing loss and noise exposure from service in the form of artillery fire and gunfire.  He also reported non-service noise exposure from working in a cotton mill.  Puretone thresholds for the left ear were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
20
15
20
30
35

Speech recognition score for the left ear was 96 percent.  The examiner opined that in light of declining hearing thresholds while on active duty, the appellant's hearing loss was likely related to service.  

In this case, the Board has reviewed the record and determined that service connection for left ear hearing loss is not warranted.  In that regard, while the service treatment records reflect a shift in hearing acuity during the years that the appellant was in the National Guard, the puretone thresholds shown on various periodic examinations do not reflect hearing loss disability under VA regulation.  Moreover, the February 2009 VA examination also failed to demonstrate puretone thresholds or speech recognition scores for the left ear demonstrating disability for VA purposes.  This is to say, at no point during the appeal has the appellant had puretone thresholds at 40 or greater all relevant frequencies, or 26 or greater in three or more frequencies.

As noted, VA regulations require that hearing loss be reported at a certain level before it will be considered a disability for compensation purposes.  In this case, neither the service records nor those subsequent to service demonstrates that the appellant has ever had left ear hearing loss disability as defined by VA regulations.  The Board acknowledges the appellant's report that he has experienced a decrease in hearing acuity, and the VA examiner's opinion that current hearing deficit is related to service; however, in the absence of proof of a present disability as defined by VA regulations, there can be no valid claim for service connection.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer  v. Derwinski, 3 Vet. App. 223, 225   (1992).  Accordingly, the claim of entitlement to service connection for left ear hearing loss disability must be denied.  

The preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49, 54   (1990).

ORDER

Entitlement to service connection for left ear hearing loss disability is denied.


REMAND

To establish status as a "Veteran" based upon a period of active duty for ACDUTRA, a claimant must establish that he was disabled from a disease or injury incurred or aggravated in line of duty during that period of ACDUTRA.  See 38 C.F.R. § 3.1(a), (d) (2012); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  The fact that a claimant has established status as a "Veteran" for purposes of other periods of service does not obviate the need to establish that the claimant is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA.  See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). 

The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty.  38 U.S.C.A. § 101(2)  (West 2002); (24); 38 C.F.R. § 3.6(a) (2012).

In this case, the current record indicates that the appellant had a period of ACDUTRA from August 1971 to February 1972, with subsequent service in the Army National Guard, the nature of which is not entirely clear.  In October 2008, the service department indicated that the appellant performed no active duty other than for training purposes.  However, the service treatment records include a predeployment health assessment completed in February 2003.   The Board additionally observes that the appellant's periods of ACDUTRA and INACDUTRA are not apparent from the current record.  Without knowledge of the periods during which the appellant was on ACDUTRA or INACDUTRA, it is impossible for the Board to determine whether the appellant was disabled from a disease or injury incurred or aggravated in line of duty during that period of ACDUTRA, or was disabled from an injury incurred or aggravated in the line of duty during a period of INACDUTRA.  Accordingly, the AOJ must obtain available service personnel records and establish the appellant's periods of ACDUTRA and INACDUTRA.

The Board notes that the appellant was afforded various examinations in February 2009.  The examination request states that the appellant was treated for his claimed gout, depression, sleep disorder, hypertension, hemorrhoids, and gastritis "while on active duty".  The examiners were asked to provide opinions regarding whether it was at least as likely as not that the claimed disabilities were the same as were "treated on active duty".  As noted above, the record is unclear as to the appellant's periods of ACDUTRA and INACDUTRA; as such, any statement that the appellant was treated for the claimed disabilities while on active duty may not be correct.  The Board acknowledges that the VA examiners in some instances provided positive nexus opinions.  However, absent clarification of the appellant's periods of service, the premise upon which those opinions were based (i.e., that the appellant was treated for the claimed disability on active duty) may not be correct.  

In sum, the agency of original jurisdiction (AOJ) must clarify the appellant's periods of service and, as an initial matter, reach a conclusion as to whether there was any disease or injury during any period of active duty or ACDUTRA and any injury during a period of INACDUTRA.  If the answer to that inquiry is affirmative, the AOJ must then make a determination as to whether additional VA examinations or opinions are necessary.

Accordingly, the case is REMANDED for the following action:

1.  Request from the service department and all pertinent National Guard units specific and definitive certification of all periods of active duty, ACDUTRA and INACDUTRA.  Then document for the record a chronological listing of these periods of service.

All service personnel records should be obtained for such periods of service.  The details of attempts to obtain all pertinent records and information must be delineated in writing in the file. 

If the appellant has additional documentation with regard to any period of service, he should submit it. 

2.  Conduct a complete review of the expanded record to determine the following with respect to the claimed depression, hypertension, gouty arthritis, sleep disorder, gastritis, and hemorrhoids:

a.  Whether there was any relevant disease or injury during any period of active duty or ACDUTRA.

b.  Whether there was any relevant injury during any period of INACDUTRA.

If so, make a determination as to whether an examination or addendum opinion is necessary to determine whether the claimed disability is related to any period of active duty, ACDUTRA, or INACDUTRA.

3.  Readjudicate the appellant's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.  If the decision remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 


The appellant 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).




______________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs