Citation Nr: 1328349 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-37 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for left ear hearing loss disability. 3. Entitlement to an initial rating higher than 10 percent for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1973. This appeal came before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied service connection for bilateral hearing loss, tinnitus, and a back disability. When the case was before the Board in January 2012, it was remanded for additional development. While the case was in remand status, the issues of entitlement to service connection for right ear hearing loss and tinnitus were resolved by a February 2012 rating decision which granted service connection for both disabilities. In August 2011, the Veteran provided testimony at a videoconference hearing before an Acting Veterans Law Judge, who is no longer employed at the Board. In a March 2012 letter, the Board informed the Veteran of this and his options for another Board hearing. Later in March 2012, the Veteran informed the Board that he did not desire another Board hearing. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA The low back disability claim is decided herein while the other issues on appeal are addressed in the REMAND that follows the ORDER section of the decision. FINDING OF FACT A back disability was not present until more than one year following the Veteran's discharge from service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in a letter mailed in October 2009, prior to the initial adjudication of the claim in January 2010. The record also reflects that all service treatment records (STRs), all available post-service medical evidence identified by the Veteran, and Social Security Administration (SSA) records have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Board acknowledges that the Veteran has not been provided a VA examination to determine the etiology of his back disability. VA must provide a medical examination or obtain a medical opinion 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 that 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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4)(i). A remand for an examination and etiology opinion is not required in this case. As explained below, the Board has determined that the Veteran's statements alleging the onset of back problems in service and a continuity of back symptoms thereafter are not credible. There is no other evidence establishing that any relevant injury or disease occurred in service or suggesting that the back disability was manifested within the one-year presumptive period following the Veteran's discharge. With respect to the contention that the back disability is related to his service duties involving lifting and twisting, the Board notes that there is no competent evidence suggesting that the Veteran's back disability is related to those duties or is otherwise related to a service. Therefore, VA is not obliged to provide an examination or obtain an opinion in response to this claim. Moreover, there has been substantial compliance with the Board's January 2012 remand directives with respect to the issue decided herein. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background The Veteran contends that he had back pain during service and that his current back disability is related to service, specifically having to pass along goods, including weapons, after they were dropped onto the ship from a helicopter. He contends that the associated lifting and twisting/turning resulted in injury of his back which resulted in his back disability. See August 2011 hearing transcript and the Veteran's October 2009 statement. The service treatment and examination records are negative for evidence of a back disorder. The report of the March 1973 examination for discharge shows that the Veteran's back was found to be normal on clinical examination. There is no post-service medical evidence of a back disorder until many years following the Veteran's discharge from service. A September 1999 magnetic resonance imaging (MRI) report reveals an impression of L5-S1 degenerative disc disease with posterior annular bulging. The record indicates that the Veteran reported a history of, "severe back pain down the legs to feet for two weeks." An August 2003 treatment record reflects the Veteran's history of a gradual onset of back pain which began one week earlier. The record notes that the pain radiated from the lower back to the right thigh. The Veteran was assessed with low back syndrome. April 2008 private treatment records reflect the Veteran's history of low back pain for 10 years. He explained that the symptoms "came on slowly." An August 2011 statement from a friend of the Veteran indicates that he had known the Veteran for 30 years and that the Veteran had had trouble with his back for as long as he had known the Veteran. Analysis The Board has determined that service connection is not warranted for the Veteran's back disability. Initially, the Board finds that a preponderance of the evidence shows that no back disability was present until more than one year following the Veteran's discharge from service. The service treatment and examination records reflect no findings or histories indicative of a back disability, the earliest reported diagnosis of record dates more than 26 years after active service, and the histories recorded in the post-service treatment records indicate that the back pain began in the 1990s. The Board acknowledges that the Veteran has reported an in-service onset of back pain and persistent pain since that onset. The Board finds the history provided by the Veteran for compensation purposes in connection with this claim is not credible. It is contradicted by the service treatment records showing no evidence of back disability and that his back was found to be normal on the discharge examination. More importantly, it is contradicted by the history provided by the Veteran for clinical purposes in conjunction with treatment for his back, which indicates that the pain began in the 1990s. The Board has also considered the August 2011 statement from the Veteran's friend indicating that the Veteran has had back pain during the 30 years that he has known the Veteran. This statement supports the presence of back pain in the 1980s and later. It does not support the presence of back pain in service or within one year after the Veteran's discharge from service. Furthermore, the evidence does not suggest that the Veteran's back disability is related to service. There is no medical opinion of record linking the back disability to service. The Board acknowledges that the Veteran has reported back pain during service as a result of activities associated with transporting goods. The Board finds the history of lifting and twisting/turning in connection with the transportation of goods in service is credible as it is consistent with the nature of the Veteran's service; however, there is no competent evidence linking the Veteran's current back disability to those service activities. While the Veteran might sincerely believe that his current back disability is related to those activities, there is no indication in the record that he possesses the required expertise to render a competent opinion linking his current back disability to such activities. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for a back disability is denied. REMAND In June 2012, the appellant submitted a timely notice of disagreement (NOD) with a February 2012 rating decision assigning an initial 10 percent rating for the service- connected tinnitus. A review of the paper files and Virtual VA does not disclose that the Veteran has been provided a Statement of the Case (SOC) addressing this issue. Therefore, the Board must remand the issue for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). With respect to the left ear hearing loss claim, an addendum opinion should be requested from the examiner who performed the January 2012 VA examination to address the evidence of an increased, though still normal, puretone threshold at 2000 Hertz in the left ear at separation. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Issue an SOC on the issue of entitlement to a higher initial rating for tinnitus, and inform the Veteran of the requirements to perfect an appeal with respect to this new issue. If the Veteran perfects an appeal with respect to the issue, the RO or the AMC should ensure that any indicated development is completed before the case is returned to the Board. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's hearing loss claim, to include any records pertaining to more recent VA treatment or evaluation of the Veteran for left ear hearing loss. 3. Then, the claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder should be provided to and reviewed by the VA audiologist who performed the January 2012 examination. The audiologist should be requested to provide an addendum stating an opinion as to whether it is at least as likely as not (50 percent or better probability) that the left ear hearing loss began during service or is otherwise etiologically related to service. A rationale should be provided for any opinion expressed, with discussion of the 10-decibel increase in the puretone threshold at 2000 Hertz at separation, the indication in the January 2012 examination record that a 10-decibel increase is "significant," and the in-service noise exposure. If the examiner is unable to provide the required opinion, the examiner should explain why. If the examiner is unable to provide the opinion because it would be speculative, the examiner should specify whether there is additional information that would enable him/her to provide the required opinion; or whether the inability to provide the requested opinion is based on the limits of medical knowledge. If the January 2012 examiner is unavailable, the claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder should be provided to and reviewed by another audiologist or physician with sufficient expertise who should be requested to provide the requested opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 4. Undertake any other indicated development. 5. Thereafter, readjudicate the claim. If the benefit sought on appeal is not granted to the appellant's satisfaction, issue a supplemental statement of the case to the appellant and his representative and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is 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). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs