Citation Nr: 1327391 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-37 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for right ankle disability ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in May 2009, a statement of the case was issued in August 2009, and a substantive appeal was received in September 2009. The Veteran's cotemporaneous service connection claim for tinnitus was granted by a July 2013 rating decision; that issue is no longer in appellate status. FINDINGS OF FACT 1. The Veteran does not have current bilateral hearing loss disability for VA compensation purposes. 2. Right ankle disability was not manifested during the Veteran's active duty service or for many years thereafter, nor is the Veteran's current right ankle disability otherwise causally related to his service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Right ankle disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veteran's Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Such notice must be provided to a claimant before the agency of original jurisdiction's initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO provided VCAA notice to the Veteran in a September 2008 letter prior to a January 2009 rating decision. This letter informed the Veteran of the information necessary to prove entitlement to service connection, the types of evidence VA would assist him in obtaining, and his responsibility to identify relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the requirements the United States Court of Appeals for Veterans Claims set out in Pelegrini have been satisfied. Thereafter, the RO readjudicated his service connection claim for a right ankle disability in a June 2009 rating decision to address new evidence received after the Veteran filed his May 2009 notice of disagreement. That evidence was duly considered in the August 2009 statement of the case issued by the RO. Additionally, after the Veteran filed his September 2009 substantive appeal, he was afforded VA examinations in July 2013, the results of which were considered by the RO in a supplemental statement of the case and cotemporaneous rating decision issued in the same month. The notice requirements must also apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The September 2008 letter provided notice of the types of information needed to substantiate the Veteran's claim. The letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). Furthermore, the duty to assist has also been satisfied. 38 U.S.C. § 5103A(a)(1); id. at § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2). Relevant service treatment records, private medical records, VA treatment records, and lay statements have been obtained. Moreover, the Veteran has not alleged, and the record has not otherwise shown, that the contents of any potentially outstanding treatment records would lend material support to his claim. Thus, the Board finds that the record as it stands includes adequate competent evidence to support a decision on the merits, and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). In July 2013, the Veteran was provided a VA audiological examination. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the adequacy of such. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examiner's opinion demonstrated his consideration of the claims file, outlined his reasoning, considered the relevant medical facts and principles, and addressed the nature and etiology of the Veteran's bilateral hearing loss. Accordingly, the Board finds that VA has satisfied its duty to assist, and to provide an adequate examination under Barr. See id.; 38 C.F.R. § 3.159(c)(4). The Board recognizes that the Veteran has not been afforded an examination for his right ankle disability. Under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), an examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. For reasons discussed below, the Board finds that there is no credible evidence of any in-service event, injury, or disease related to the right ankle. Therefore, the Board finds that VA has not duty to provide an examination, and a remand to do so would unnecessarily burden agency resources and delay resolution of the claim. Sondel v. West, 13 Vet. App. 213 (1999); Soyini v. Principi, 1 Vet. App. 540, 546 (1991) (concluding that remand is unwarranted where it 'would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran'). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. II. Analysis The Veteran claims his current bilateral hearing loss and right ankle disability are related to his active duty service, and therefore seeks entitlement to service connection. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system and arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As noted above, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. 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. A. Bilateral Hearing Loss The Board again notes that service connection has been established for tinnitus on the basis of noise exposure during service. The Veteran's duties included those of an Armor Crewman. However, the fact of noise exposure by itself is not enough. There must be evidence of current bilateral hearing loss disability and a nexus between such current disability and the noise exposure during service. The Board stresses to the Veteran that hearing loss disability for VA compensation purposes is defined by regulation cited above. The Veteran was provided an audiological examination in July 2013. The examination reflects 100 percent speech recognition in both ears. Moreover, the Veteran's auditory thresholds in the 500 to 4000 Hertz frequency range are all below 40 decibels, and is only greater than 26 decibels at 4000 Hertz. Accordingly, the Veteran does not have current bilateral hearing loss disability for VA compensation purposes. Therefore, there is no basis for finding that service connection is warranted for bilateral hearing loss at this time. There is no current hearing loss disability as defined by regulation. Without a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet.App. 223 (1992). Should the Veteran's hearing acuity decrease in the future so that the provisions of 38 C.F.R. § 3.385 are met, he may always request that his claim be reopened. B. Right Ankle Disability Turning to the Veteran's claim for a right ankle disability, the evidence of record does in fact show a diagnosis of current disability. Specifically, there is a medical diagnosis of lateral malleolus fracture in the right ankle, with widening ankle syndesmosis. Private medical records from Dr. Michael D. Gill, M.D., indicate the Veteran was diagnosed as such in October 2003. The same records also indicate the Veteran suffered from a tear of the deltoid ligament and a disruption of ankle mortise. On entrance examination in August 1983, it was noted that the Veteran had suffered a torn ligament of the right ankle. The handwritten notation is not entirely clear, but appears to make reference either to age 8 or to 8 yrs. The notation then states "O.K. now." On clinical examination, the Veteran's feet and lower extremities were evaluated as normal. Subsequent service treatment records do not make further reference to the right ankle. There are records documenting left ankle complaints in February 1984, but with no reference to the right ankle. On separation examination in June 1986, the Veteran's feet and lower extremities were clinically evaluated as normal. There was no reference to problems with either ankle. After reviewing the totality of the evidence, the Board finds no basis for service connection for current right ankle disability. There is simply no persuasive evidence of any right ankle injury or disorder during service. The Veteran's lower extremities were evaluated as normal on entrance examination, and there is no evidence supporting the Veteran's assertion of a right ankle injury in 1984. The Board acknowledges that the Veteran is competent to report a right ankle injury, but after reviewing the record the Board is unable to find such assertions credible. The Veteran's service treatment records document numerous times where he sought treatment for various physical problems. However, there are no notations of any right ankle complaints. The service treatment records are exactly where one would expect to find pertinent complaints documented. The Board also notes that the Veteran's feet and lower extremities were clinically evaluated as normal at the time of discharge examination. This demonstrates the fact that trained medical personnel were of the opinion that there were no such disorders at that time. The Veteran's credibility is further diminished by the fact that a private October 2003 "Triage and History" report indicates the onset of the Veteran's current ankle disability was in 2003, after he slipped and fell in the shower. These private records do not reference any history of a prior right ankle injury during service. In light of these inconsistencies, the Board finds the Veteran's claims of an in-service injury less than credible. Accordingly, the evidence does not sufficiently demonstrate an in-service injury of his right ankle. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The Board again acknowledges that the Veteran indicated at his August 1983 enlistment examination that he had torn a ligament in his right ankle prior to service. However, no right ankle disorder was detected on entrance examination, and there is otherwise no persuasive evidence of any right ankle problem during service. No right ankle disorder was noted on discharge examination or for some 17 years after service. There is no basis for finding that the current right ankle disorder was either first manifested during service, or that any preexisting right ankle disorder was aggravated during service. In sum, the Board finds that the preponderance of the evidence is against service connection for right ankle disability. As such, while mindful of the benefit-of-the-doubt rule, the Board finds that it is not for application and that service connection must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is not warranted. Service connection for right ankle disability is not warranted. The appeal is denied as to both issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs