Citation Nr: 1328443 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-29 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and C.G. ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to October 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing; a transcript of that hearing is of record. In July 2013, the Board remanded this appeal for further evidentiary development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for a left knee 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. VA will notify the Veteran if further action is required on his part. FINDING OF FACT Bilateral hearing loss did not manifest in service or to a compensable degree within one year after the Veteran's separation from service, and there is no probative evidence linking the Veteran's hearing loss to his service. CONCLUSION OF LAW The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act 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)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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 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). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a June 2009 letter, issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate his claim for service connection as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records. In this regard, the RO obtained service treatment records, relevant post service treatment records to include outstanding VA treatment records requested in the Board's the July 2013 remand, and a VA examination and opinion. Also of record and considered in connection with the claim are written statements provided by the Veteran as well as a transcript of the Veteran's hearing testimony provided in June 2013. The Veteran has not identified any other evidence relevant to this claim. The Board notes that it previously remanded the matter on appeal in July 2013 for development, to include association of any outstanding VA treatment records with the claims file. In July 2013, those VA treatment records were obtained and associated with the claims file. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a VLJ in 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) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the June 2013 hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for service connection for hearing loss. Specifically, the VLJ noted that the record was lacking a medical opinion linking the Veteran's hearing loss to service. The Veteran's representative asked specific questions directed at identifying whether the Veteran had symptoms meeting the criteria for service connection. Moreover, the Veteran volunteered his treatment history and symptoms since service. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The hearing discussion revealed that VA treatment records were outstanding, and the VLJ requested the identified records on remand. Furthermore, the VLJ offered to hold the record open to afford the Veteran an opportunity to obtain a positive medical opinion, but the Veteran declined. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim for service connection. Accordingly, the Veteran is not shown to be prejudiced on this basis. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the VLJ hearing. The hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that there is no prejudice to the Veteran in deciding this case. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Thus, consideration of this matter on the merits at this time is appropriate. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309(a). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in- service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). 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, or 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. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that his current bilateral hearing loss is related to his period of active service. In a July 2009 statement, the Veteran stated that his hearing loss was related to cleaning planes in service. It also appears that the Veteran contends that because his tinnitus began in service and he was granted service connection for the same, then his bilateral hearing loss must have been caused by service as well. In this regard, in an August 2013 statement, the Veteran stated that "it stands to reason" that since VA granted service connection for tinnitus as a result of acoustic trauma in service, then bilateral hearing loss should be granted as well. The Board notes, however, that service connection for tinnitus was not granted based a relationship between tinnitus and acoustic trauma in service, but rather based on the Veteran's statements that the disability began during service and the subjective nature of that disability. In any event, a February 2010 VA examination report shows that the Veteran currently has bilateral hearing loss for VA purposes, as audiometric testing during examination revealed bilateral pure tone thresholds of 40 decibels or greater at each frequency tested between 100 Hertz and 5000 Hertz. 38 C.F.R. § 3.385. Thus, the existence of a current disability is not in dispute, and the remaining question is whether the Veteran's current hearing loss is related to his active service. Service treatment records are negative for complaints, treatment, or diagnoses related to bilateral hearing loss. An October 1957 separation examination showed bilateral hearing acuity within normal limits with findings of 15/15 on whispered and spoken voice testing, bilaterally. Post-service VA treatment records dated between December 1980 and July 1983 are similarly negative for complaints, clinical findings, or treatment related to bilateral hearing loss. The Veteran was afforded a VA audiological examination in February 2010 during which he reported an onset of hearing loss around 15 years after service. Regarding his history of noise exposure, the Veteran reported military noise exposure from aircraft engines while cleaning planes when they arrived on base. Post-service noise exposure included power lawn mowers and weed eaters. He also reported a post- service occupational history that included work pumping gas for four years and driving a delivery truck for six years. Following audiometric testing and physical examination, the examiner diagnosed moderate to profound bilateral sensorineural hearing loss. Though the claims file was not available for review, the examiner noted evidence in the claims file showing that October 1957 separation examination revealed 15/15 hearing acuity. Based on those findings at separation, in conjunction with the Veteran's post-service work history, civilian noise exposure, and report of noticing a decrease in hearing 15 years post service, the examiner opined that the Veteran's hearing loss is less likely as not related to military noise exposure. Subsequent VA treatment notes dated between October 2010 and July 2013 show an initial complaint of hearing loss in October 2010 upon establishing VA care, but they are otherwise negative for complaints or treatment related to hearing loss. In this regard, the Veteran testified during his June 2013 videoconference hearing that he is not receiving treatment for his hearing loss. Significantly, those VA records do not show that any VA provider linked the Veteran's current hearing loss to his military service. In June 2013, the Veteran testified that he first noticed hearing loss 15 to 20 years after service. His wife also testified that the Veteran currently has difficulty hearing. Upon review of the record, the Board finds that service connection for bilateral hearing loss is not warranted. A hearing loss disability was not shown in service or for many years thereafter. In this regard, the Veteran himself has testified that he did not notice hearing loss until 10 to 15 years after service, and the first diagnosis of hearing loss is in February 2010, over 50 years post service. Moreover, the February 2010 VA examiner considered the Veteran's hearing at separation and his post-service symptomatology, thoroughly interviewed and examined the Veteran, and provided a rationale for the opinion that the Veteran's current hearing loss was not due to military noise exposure. As such, this opinion is entitled to great probative weight. Furthermore, there is no contrary opinion of record. The Board is cognizant that the February 2010 VA examiner did not have the Veteran's claims file for review. However, claims file review is not a stringent requirement for medical opinions, and an opinion may not be discounted solely because the opining clinician did not conduct such a review. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the Board finds that the VA examiner's demonstrated familiarity with the Veteran's pertinent clinical history, in accurately referencing findings on separation examination, effectively removes any taint of inadequacy presumed from the lack of claims file review. Prejean v. West, 13 Vet. App. 444 (2000). Moreover, the examiner's opinion is consistent with the Veteran's own testimony that his hearing loss began many years after service, as well as the Veteran's service and post-service treatment records, which contain no evidence of a link between his current hearing loss symptoms and any noise exposure during service. While the Veteran contends that he has bilateral hearing loss related to his noise exposure in service, the Veteran is not shown to have any medical training and his opinion on this point is not competent medical evidence. In this regard, audiological disorders such as sensorineural hearing loss require objective testing to diagnose, and can have many causes. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, as stated, the Veteran has not reported that he experienced hearing loss in service or for many years after, and his wife also declined to testify that the Veteran has exhibited difficulty hearing in service or soon thereafter. Further, whether symptoms the Veteran experienced following service are in any way related to his current hearing loss disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Here, the most probative medical opinion addressing the relationship between the Veteran's current hearing loss and service is against the claim. In sum, the Board finds that the most probative evidence indicates that hearing loss disability was not shown in service or for many years thereafter, and that the current hearing loss disability is not related to service. Accordingly, service connection for bilateral hearing loss is not warranted on any basis. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for bilateral hearing loss is denied. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim of entitlement to service connection for a left knee disability. The Veteran contends that he suffers from a current left knee disability that is related to service. Specifically, he asserts that his current left knee disability was caused when he fell down stairs while exiting an airplane in service. Service treatment records, including an October 1957 separation examination, are negative for complaints or treatment related to a left knee disability. Indeed, the Veteran testified in June 2013 that he did not seek treatment for his left knee injury in service. Nevertheless, he is competent to state he injured his left knee during service. Post-service VA treatment records obtained pursuant to the Board's July 2013 remand show that in September 1982, the Veteran complained of painful and swollen knees. Diagnostic imaging revealed minimal degenerative joint disease of the right knee, but no abnormality related to the left knee. In July 1983, the Veteran was scheduled for an orthopedic knee appointment related to his knees, though it is unclear whether he was subsequently seen. Given the evidence outlined above, the Veteran should now be afforded a VA examination with medical opinion as to whether any current left knee disability arose during service or is otherwise related to any incident of service, including injuries due to a fall. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examiner should consider the Veteran's reports of left knee injury in service and his report of post-service symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in- service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Relevant ongoing medical records, if any, should also be obtained, to include any VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for his left knee disability. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. In addition, obtain all relevant ongoing VA treatment records dating since July 2013 from the VA Medical Center in Houston, Texas. 2. Schedule the Veteran for a VA joints examination to determine the nature of any current left knee disability and obtain a medical opinion as to whether his disability is possibly related to his period of service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current left knee disability arose during service or is otherwise related to any incident of service, including claimed injury to the left knee falling down stairs in service. The examiner should explain the medical basis for the conclusions reached. If the examiner cannot provide the above opinion without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs