Citation Nr: 1324644	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  09-47 299	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Manchester, New Hampshire


THE ISSUES

1. Entitlement to service connection for right ear hearing loss.

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

3. Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Donna D. Ebaugh, Counsel


INTRODUCTION

The Veteran served on active duty from January 1971 to July 1974.

This appeal to the Board of Veterans' Appeals (Board) arose from an October 2007 rating decision in which the RO in White River Junction, Vermont, inter alia, denied service connection for hearing loss and hypertension.  In March 2008, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in November 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2009.

During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Manchester, New Hampshire, which has certified the appeal to the Board.

In March 2011, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record. 

In May 2011, the matters on appeal (then characterized as involving claims for service connection for bilateral hearing loss, and for hypertension), were remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action.  

As the claim for right ear hearing loss is now ready for adjudication, the Board decision on that claim set forth below.  However, for the reasons expressed below, the issues of entitlement to service connection for left ear hearing loss and for hypertension are being remanded to the. VA will notify the Veteran when further action, on his part, is required.


FINDING OF FACT

Although the Veteran likely had in-service noise exposure, and has asserted entitlement to service connection on the basis of such exposure, testing results have not revealed right ear hearing loss to an extent recognized as a disability for VA purposes at any point pertinent to this appeal.


CONCLUSION OF LAW

The criteria for service connection for right ear hearing loss are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Due Process Considerations

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, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, in a May 2007 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  The letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.  The October 2007 RO rating decision reflects the initial adjudication of the claim after issuance of the May 2007 letter.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided.  Pertinent medical evidence associated with the claims file consists of service and VA treatment records, and the reports of August 2007 and June 2011 VA audiological evaluation reports.  The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims.  A review of the documents in such file reveals that VA outpatient treatment records were added to Virtual VA in February 2012 and April 2013, following certification to the Board, but that these documents are not relevant to the hearing loss claim decided herein.  Also of record and considered in connection with the appeal is the transcript of the Veteran's March 2011 Board hearing, along with various written statements provided by the Veteran, and by his representative, on his behalf . The Board finds that no additional RO action to further develop the record in connection with the claim for service connection of right ear hearing loss, prior to appellate consideration, is required.

The Veteran and his representative have argued that the August 2007 VA audiological opinion was inadequate as a nexus opinion was not rendered.  However, as the August 2007 VA examination report did not show a hearing loss disability for VA purposes in the right ear, no nexus opinion was required.  Also, the Board rectified the possibility of an inadequate examination by directing that the Veteran be reexamined, and such reexamination took place in June 2011.  

As regards the Board hearing, it is noted that, 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 Veterans Law Judge who chairs a hearing fulfill two duties to comply with the regulation: (1) to fully explain the issues; and, (2) to suggest the submission of evidence that may have been overlooked.  

Here, during the March 2011 Board hearing, the undersigned enumerated the issues on appeal.  In addition, the undersigned asked the Veteran if he had a medical opinion from any audiologist or physician about his alleged hearing loss or whether he had discussed with an audiologist or physician the relationship between any current hearing loss and military service.  Transcript [T.] pages 9, 10.  He responded that he had not.  T. page 10.  The undersigned also asked the Veteran whether he received treatment for his hearing loss and if so, whether there were any outstanding treatment records.  T. page 13.  The hearing discussion did not reveal any additional evidence necessary for the adjudication of the claim.  In this regard, the Veteran indicated that he received treatment through VA, but had not had any audiological consults within the past year, and he did not indicate that any audiological treatment was upcoming.  

The Board acknowledges that not every element of the claim for service connection for hearing loss was discussed during the hearing.   However, the Representative's Informal Hearing Presentation discussed the elements of a claim for service connection, to include the requirement of a current disability upon which this claim turns.  Thus, the Board is satisfied that the Veteran had actual knowledge of the elements of the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and if any error or omission occurred, such was not prejudicial to the Veteran.  

In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R.§ 3.303(d).

Service connection may be presumed, for certain chronic diseases, including organic diseases of the nervous system (interpreted to include sensorineural hearing loss), which develop to a compensable degree within a prescribed period after discharge from service, although there is no evidence of such disease during the period of service.  This presumption is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree.  38 C.F.R. § 3.307(c).

With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned.  When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).   

The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.  See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim."  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).

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.

Initially, the Board notes that the Veteran likely had in-service noise exposure, as alleged.  His military occupational specialty was a fuel specialist, and .  He has offered sworn testimony that he primarily worked around aircraft and was regularly exposed aircraft noise.  T. page 6.  The RO has already conceded the Veteran's noise exposure in awarding service connection, and the Board finds no reasons 
   
Notwithstanding the above, and the fact that the Veteran asserts the existence of  a relationship between in-service noise exposure and current diminished hearing , the claim for service connection for right ear hearing loss must fail because hearing loss to an extent recognized as a disability for VA purposes (as defined under 38 C.F.R. § 3.385), has not been shown at any point pertinent to this appeal. 

Service treatment records reflect no complaint, finding, or diagnosis pertinent to hearing loss.

Post service, a July 2007 VA outpatient treatment record documents that hearing within normal limits in the right ear, between 250-8000 Hertz.  The VA audiologist also noted that the Veteran had excellent word recognition in the right ear.

On August 2007 audiological evaluation, audiometric testing revealed  right ear pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
20
30

Speech audiometry revealed speech recognition ability of 98 percent in the right ear.

Following the Board's May 2011 Remand, the Veteran underwent another VA audiological evaluation in June 2011.  At that time, audiometric testing revealed  right ear pure tone thresholds, in decibels, as follows:
 



HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
20
25

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

As the Veteran's right ear pure tone thresholds and speech recognition scores have not met even the minimum requirements of  38 C.F.R. § 3.385, this evidence 
establishes that the Veteran does not have hearing loss disability in the right ear.  The Board has considered the Veteran's sworn testimony that he currently has difficulty hearing and has had difficulty hearing since service, albeit gradual.  However, the fundamental determination as to whether there exists hearing loss to an extent recognized as a disability for VA purposes is governed by the requirements of 38 C.F.R. § 3.385, which does not authorize a finding of a hearing loss disability when pure tone thresholds and/or speech recognition scores fail to meet the requirements of the regulation.  In other words, the Board is bound by the testing results, and has no discretion in this regard.  

The Board further notes that the Veteran does not have the appropriate training and expertise to provide, on the basis of his own lay assertions, the testing results needed to establish hearing loss disability within the meaning of 38 C.F.R. § 3.385.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). disability upon which to predicate a grant of service connection-has not been met.  Significantly, neither the Veteran nor his representative has presented or identified any existing audiometric results that, in fact, establish right ear hearing loss to an extent recognized as a disability for VA purposes. 

Accordingly, the claim for service connection for right ear hearing loss must be denied because the first essential criterion for service connection-evidence of a current disability-is not met.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for right ear hearing loss is denied.



REMAND

Unfortunately, the Board's review of the claims file reveals that additional RO action on the claims remaining on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. 

Regarding left ear hearing loss, the June 2011 VA examination report contains conflicting reports of the Veteran's left ear pure tone thresholds, which directly affects the finding of whether the Veteran has a current left ear hearing loss disability.  As discussed above, 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.  

In this case, the June 2011 VA examiner recorded two different pure tone threshold values for the Veteran's left ear.  Specifically, in one portion of the VA examination report, the examiner noted left ear pure tone thresholds as follows: 




HERTZ



500
1000
2000
3000
4000
LEFT
15
10
25
15
30

The examiner also noted a left ear speech recognition score of 94 percent.  Notably, the first set of pure tone thresholds do not meet the requirements for a finding of impaired hearing for VA purposes.  However, in a subsequent section of the June 2011 VA examination report, the examiner commented that the Veteran had a pure tone threshold of 40 decibels at 4000 Hertz, which meets the requirement for left ear hearing loss disability under 38 C.F.R. § 3.385.  Given the discrepancy between the values noted in the examination report, further clarification is required from the VA examiner regarding the correct pure tone threshold value at 4000 Hertz as this has a direct bearing on the existence of a left ear hearing loss disability.  As such, an addendum opinion is required.  

Regarding the claim for service connection of hypertension, in May 2011, the Board remanded this claim, in part for VA examination and medical opinion.  The VA examiner was specifically asked to offer an opinion as to whether the Veteran's hypertension disorder was caused or aggravated by his service-connected type II diabetes mellitus.  On remand, the Veteran underwent a VA examination in June 2011; however, the VA examiner only offered an opinion with respect to whether the Veteran's diabetes mellitus Type II caused his hypertension and did not address whether the diabetes mellitus, type II, aggravated his hypertension.  Thus, an addendum opinion regarding the aggravation question is required.  See Stegall v. West, 11 Vet. App. 268 (1998).

Prior to obtaining further medical opinion in these claims, to ensure that all due process requirements are met, and that the record is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal.  The RO's letter to the Veteran should explain that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).

Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012).

The actions identified herein are consistent with the duties imposed by the VCAA.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal.  The RO's adjudication of the claims should include consideration of all pertinent evidence added to the claims file since the RO's last adjudication (to include the additional VA outpatient treatment records  added to Virtual VA, in February 2012 and April 2013, which appear to be pertinent to the hypertension claim, and for which the Veteran has not waived initial RO consideration).  

Accordingly, these matters are hereby REMANDED for the following actions:

1.  Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record.

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period).

2.  After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's entire claims file, to include a complete copy of this REMAND and copies of any pertinent documents on Virtual VA to the  June 2011 VA audiologist for an addendum opinion.  

The audiologist is asked to clarify the discrepancy between the left ear pure tone threshold values listed in the on the report on the table of measured pure tone threshold values, which noted 30 decibels at 4000 Hertz and the examiner's statement that the Veteran had a pure tone threshold of 40 decibels at 4000 Hertz.  

The audiologist should set forth complete rationale for the conclusion reached in a printed (typewritten) report.  

3.  After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's entire claims file, to include a complete copy of this REMAND and copies of any pertinent documents on Virtual VA to the June 2011 VA hypertension examiner for an addendum opinion.  

The examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's currently diagnosed essential hypertension is aggravated (worsened beyond natural progression) by his service-connected type II diabetes mellitus.  If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation.

The examiner should set forth complete rationale for the conclusions reached in a printed (typewritten) report.  

4.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall, supra.
 
5.  After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims remaining on appeal in light of all pertinent evidence (to include evidence associated with the paper or electronic records after the last adjudication) and legal authority.

6.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND 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 Supp. 2012).



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs