Citation Nr: 1322373	
Decision Date: 07/12/13    Archive Date: 07/18/13

DOCKET NO.  07-37 993	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

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

2.  Entitlement to service connection for a left shoulder disability.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Barone, Counsel



INTRODUCTION

The Veteran had active service from October 1968 to October 1992.  He received the Combat Action Ribbon.

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions issued in August 2005 and June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Board notes that the Veteran appeared for a hearing before an Acting Veterans Law Judge (AVLJ) in August 2010.  That AVLJ is no longer employed by the Board.  In February 2013, the Veteran was advised that the AVLJ before whom he had testified was no longer employed by the Board and given an opportunity for an additional hearing.  He was instructed that if he did not respond within 30 days from the date of the letter, the Board would assume he did not want another hearing and proceed to adjudicate his appeal.  The Veteran has not replied to the Board's inquiry.  Therefore, the Board concludes that the Veteran does not desire an additional hearing.

When the Veteran's appeal was before the Board in March 2012, the Board reopened the issues of entitlement to service connection for bilateral hearing loss disability, a left shoulder disability, a right elbow disability, and a left wrist disability and remanded the issues for additional development.  While the appeal was in remand status, the RO issued an October 2012 rating decision granting service connection for the claimed right elbow and left wrist disabilities.  Accordingly, those issues are no longer before the Board.

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

The issue of entitlement to service connection for a left shoulder 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.


FINDING OF FACT

The Veteran does not have bilateral hearing loss disability for VA compensation purposes.


CONCLUSION OF LAW

Bilateral 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 February 2007 discussed the evidence necessary to support the Veteran's claim for bilateral hearing loss.  The Veteran was invited to submit or identify evidence.  The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence.  He was advised of the manner in which VA determines disability ratings and effective dates.  

A March 2012 letter advised the Veteran of the status of his claim.

The Board finds that the content of the above notices 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 Veteran 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 Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim.  Although some letters were sent subsequent to the initial adjudication of the Veteran's claims, the Board finds that there was no prejudice as the claims were readjudicated in a February 2010 supplemental statement of the case (SSOC).  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or SSOC, is sufficient to cure a timing defect).

With respect VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file.  The Veteran was afforded a VA audiological examination.  The Board finds that the examination was adequate in that the examiner reviewed the record, interviewed the Veteran, and performed appropriate examinations prior to providing her conclusions.  The examination reports of record are thorough and consistent with contemporaneous treatment records, and adequately respond to the questions posed in this appeal.  The Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  The Veteran has not asserted that there is any deficiency in his VA examination. 
The Veteran 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.

As noted above, the Veteran also was afforded a hearing before an Acting Veterans Law Judge (AVLJ) during which he presented oral argument in support of his service connection claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2011) 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 AVLJ fully explained the issue on appeal during the hearing.  Significantly, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she 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 AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

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 Veteran 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).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 

Service connection may be granted for any disease 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).  However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."  Watson v. Brown, 4 Vet. App. 309, 314 (1993).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

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). 

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).

The Court 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).

Service treatment records include the reports of various examinations conducted throughout the Veteran's service career.  On reenlistment examination in July 1972, whispered and spoken voice testing was 15/15 bilaterally.

On reenlistment examination in March 1976, audiometric testing revealed the following puretone thresholds:


HERTZ

500
1000
2000
3000
4000
Right
5
5
10
10
5
Left
5
5
10
10
10


At that time, the Veteran denied ear trouble and hearing loss.  The examiner determined that the Veteran was qualified for reenlistment and to perform all duties of his rate at sea and on foreign shores.

On reenlistment examination in February 1980, the following puretone thresholds were elicited:


HERTZ

500
1000
2000
3000
4000
Right
15
15
20
15
10
Left
20
25
25
25
25
 
The Veteran denied hearing loss but endorsed ear, nose, or throat trouble.  The examiner did not obtain a more specific description of the Veteran's complaint.  He determined that the Veteran was qualified for separation and to perform all duties of his rate at sea or on foreign shores.

On reenlistment examination in March 1985, the Veteran denied hearing loss but endorsed ear, nose, or throat trouble.  He specified that his nose bled with excessive heat.  Audiometric testing revealed the following puretone thresholds:

HERTZ

500
1000
2000
3000
4000
Right
10
0
0
0
0
Left
0
5
0
0
0

A reference audiogram in March 1988 revealed the following puretone thresholds:


HERTZ

500
1000
2000
3000
4000
Right
10
10
10
5
5
Left
0
10
10
0
0

On annual physical examination in July 1988, the Veteran denied hearing loss.  He endorsed ear, nose, and throat trouble, and the examiner indicated "ENT problems" that were not considered disabling.  Audiometric testing revealed the following puretone thresholds:


HERTZ

500
1000
2000
3000
4000
Right
10
10
10
5
5
Left
0
10
10
0
0
 
The examiner determined that the Veteran was qualified to perform all the duties of his rate at sea and on foreign shores.

On overseas screening examination in October 1991, the Veteran denied hearing loss.

On separation examination in September 1992, the Veteran denied ear, nose, and throat trouble and hearing loss.  Audiometric testing revealed the following puretone thresholds:



HERTZ

500
1000
2000
3000
4000
Right
75
65
90
60
30
Left
60
65
60
90
70

Following that testing, the Veteran was referred to otolaryngology for a hearing evaluation.  

On consultation in October 1992, the provider noted the Veteran's report that he had a cold when he was tested in September 1992.  Audiometric testing conducted during this consultation revealed the following puretone thresholds:


HERTZ

500
1000
2000
3000
4000
Right
5
5
10
5
5
Left
0
5
10
0
5

The provider noted that these results were normal.

On VA audiological examination in January 1993, the Veteran reported occasional problems hearing and a feeling that his ears were blocked.  He stated that during service he worked in a noisy laundry room.  Audiometric testing revealed the following puretone thresholds:


HERTZ

500
1000
2000
3000
4000
Right
10
15
0
5
5
Left
5
30
10
5
10

Speech recognition scores were 100 percent for the right ear and 96 percent for the left.  

A VA treatment record dated in August 2006 indicates that puretone audiometry was within normal limits on the right with mild hearing loss at 8000 Hertz on the left.  Word recognition scores were 100 percent for the right ear and 96 percent for the left.  

In March 2007 a VA provider noted that hearing was normal in both ears.  Word recognition scores were 100 percent for the right ear and 96 percent for the left.  

An April 2007 report by E.P., D.O., indicates that the Veteran had bilateral neurosensory hearing loss, with a mild to moderate hearing loss in both ears.  Dr. P. noted that speech discrimination was 100 percent in both ears.  

On VA examination in April 2012, the following puretone thresholds were elicited:





HERTZ


500
1000
2000
3000
4000
Right
20
15
15
20
15
Left
15
15
5
20
20

Speech discrimination scores were 96 percent for the right ear and 100 percent for the left.  The examiner opined that hearing loss was not at least as likely as not caused by or the result of an event in service.  She acknowledged that the Veteran was referred for evaluation and treatment following findings of decreased auditory acuity on his separation examination, but noted that the subsequent examination revealed normal hearing acuity at all test levels.  She indicated that her examination of the Veteran revealed high frequency hearing loss from 6000 to 8000 Hertz, which was consistent with presbycusis.  

Having carefully reviewed the record, the Board concludes that service connection is not warranted for bilateral hearing loss disability.  In that regard the Board notes that the grant of service connection requires competent evidence to establish a diagnosis of the claimed disability.  Moreover, 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, the evidence currently associated with the record demonstrates that the Veteran does not have bilateral hearing loss disability consistent with regulatory requirements. 

Rather, the 2008 VA examiner stated that hearing was normal.  The Board acknowledges that the September 1992 separation examination revealed significantly high puretone thresholds; however, subsequent consultation in October 1992 found normal hearing, and the Veteran noted that he had been suffering from a cold when tested in September 1992.  The 2008 VA examiner discussed the decreased auditory acuity but noted that subsequent examination revealed normal hearing.  In sum, the totality of the record points to puretone thresholds and speech recognition scores that do not constitute hearing loss disability for VA compensation purposes.  The Board also acknowledges the Veteran's report that he has experienced a decrease in hearing acuity; however, in the absence of proof of a present disability as defined by VA regulations, (i.e., loss of such severity as to constitute a disability), 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 bilateral 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 bilateral hearing loss disability is denied.


REMAND

The Veteran seeks service connection for a left shoulder disability.  Service treatment records indicate that the Veteran was seen on various occasions for complaints of neck and shoulder pain.  Muscle tension was assessed in September 1980.  He complained of left shoulder aches in December 1981.  In January 1982, the Veteran was seen for neck pain.  At that time he reported that his work involved heavy lifting.  In December 1983, he complained of left shoulder pain.  An X-ray study was negative, and the assessment was musculoskeletal irritation.  In March 1984, the Veteran complained of a stiff neck, and objective examination revealed cervical spasm on the left.  In July 1986, the Veteran was seen for pain on the left side of his neck and the left scapula.  

Pursuant to the Board's March 2012 remand, a VA examination was carried out in April 2012.  The examiner stated that it would be resorting to "mere speculation to opine whether or  not the veteran's current left shoulder condition was the same as that documented during his military service" or otherwise caused or aggravated by service.  He reasoned that there was only one complaint of left shoulder pain in the service treatment records and that the first evidence of treatment following service was in 1996.  These statements do not account for the documented in-service statements by the Veteran that his work involved heavy lifting, and service treatment records showing left cervical and scapular pain in addition to shoulder pain.  The examiner's conclusions also fail to account for complaints of left shoulder problems directly following service.  Indeed, the Veteran's original claim for service connection in January 1992 included a claim characterized as stiff neck/left shoulder.  Because the statements by the examiner do not appear to be based on a full review of the record, his report is not adequate for the purpose of deciding this claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Accordingly, clarification should be sought.

In light of the above discussion, the Board has concluded that additional development is necessary.  Accordingly, the case is REMANDED for the following action:

1.  Return the claims file to the physician who conducted the May 2012 examination.  The examiner is asked to review the claims file (including the discussion in this remand).

If the May 2012 examiner is unavailable, the claims file should be forwarded to a similarly qualified practitioner for the quested review and opinion.  If it is determined that an additional examination of the Veteran is required in order to address the questions posed, such should be scheduled.

Following review of the claims file (and examination of the Veteran if deemed necessary), the examiner should indicate whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's current left shoulder disability is related to any disease or injury in service.

A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate.   Review of the entire file is required; however, attention is invited to: service treatment records dated in September 1980, December 1981, January 1982, December 1983, March 1984, and July 1986; post-service treatment records dated in January 1993 forward.  Also note that the Veteran is found to be a credible and reliable historian.

If the examiner is unable to offer any of the requested opinions, it is essential that he offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

2.  Then, readjudicate the claim on appeal, 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 Veteran, 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