Citation Nr: 1329815 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-03 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a general arthritic condition, to include rheumatoid arthritis or arthritis of the bilateral knees and elbows. 2. Entitlement to service connection for hearing loss. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from June 1979 to June 1983. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that while the Veteran initially filed a notice of disagreement regarding his claim his heart attack was related to his military service he withdrew this appeal in a January 2010 written statement. Accordingly this issue is no longer before the Board. 38 C.F.R. § 20.204. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The evidence does not establish the Veteran's current arthritic condition either began during or was otherwise due to his military service. 2. The evidence does not establish the Veteran currently has a hearing loss disability for VA purposes in his right ear. 3. The evidence does establish the Veteran's current hearing loss disability in his left ear was due to his military service. CONCLUSIONS OF LAW 1. Criteria for service connection for an arthritic condition have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Criteria for service connection for hearing loss in the right ear have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303, 3.385 (2013). 3. Criteria for service connection for hearing loss in the left ear have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for a general arthritic condition and bilateral hearing loss. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. However, hearing loss is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) applies only to the Veteran's claim for service connection for arthritis, not hearing loss. See Walker v. Shinseki, F. 3d 1331 (Fed. Cir. 2013). Arthritis The Veteran is currently seeking service connection for a general arthritic condition. Throughout the period on appeal the Veteran has consistently related his arthritis to the physical demands of his job in the military which required him to be in a "crouching position most of the day." (Notice of Disagreement June 2008). While the Board does not doubt that the Veteran's job duty during military service was physically demanding, the Board finds review of the evidence does not establish the Veteran's current arthritis is due to his military service. Service treatment records were reviewed and do not establish the Veteran made any complaints of or sought any treatment for arthritis or other joint pain during his military service. Additionally at his June 1983 separation physical the Veteran was found to be in normal condition and no arthritis was noted. Accordingly, the Board finds the evidence does not establish the Veteran experienced arthritis during his military service. In his May 2013 hearing before the undersigned Veterans Law Judge (VLJ) the Veteran testified that he was diagnosed with arthritis in approximately 2001 or 2002. Post-service treatment records reflect the Veteran was diagnosed with osteoarthritis in February of 2003, nearly twenty years after his separation from military service. Accordingly, the Board finds the Veteran currently has an arthritis condition. However, the evidence fails to establish the Veteran developed this condition prior to the early 2000s. Therefore, the Board finds the evidence does not establish the Veteran developed arthritis within one year of separation from military service, and the requirements for presumptive service connection under 38 C.F.R. § 3.307(a)(3) have not been met. The Board finds the evidence does not otherwise establish the Veteran's currently diagnosed arthritic condition is related to his military service. The Board notes that the Veteran has consistently asserted his arthritis is due to his military service, as discussed above. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as pain in his joints. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of an arthritic condition which developed nearly twenty years after separation from military service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The record does not contain any medical evidence which suggests the Veteran's current arthritic condition is due to his military service. Instead, the Veteran's private treatment records seem to suggest his current condition is likely due to his post-service employment. In February 2003 the Veteran's private physician, Dr. J.R., noted the Veteran had "done a number of physical things over the years, farm work, pulp wooding, and for the last 20 years he has been a welder." Importantly, this doctor made no reference to the Veteran's service or events in service, providing some limited evidence against this claim. In September 2005 the same physician stated after evaluation he believed the Veteran's problem was "likely to be osteoarthritis with associated soft tissue rheumatism problems secondary to [the Veteran's] very physical activity. He has been a welder for the last 20 years." Finally, in August 2006 the same physician noted the Veteran asked "whether his arthritic problems could be related to his time in service." The physician opined it would be "very difficult" to connect the Veteran's condition to his military service "unless his service records show that he had arthritis at that time." The physician continued, "He has had several physical jobs over the years, which are much more proximal to the development of his arthritis." The post-service private treatment records for the Veteran's arthritic condition do not establish his condition is related to his military service, but instead suggest his condition is related to his years of physically demanding post-service employment. The record does not contain any other medical opinion suggesting the Veteran's condition is related to his military service. Accordingly, the Board finds the evidence does not otherwise establish the Veteran's currently diagnosed arthritis is due to his military service, and providers some evidence against this claim, making it more likely (greater than 50% chance) that this condition has nothing to do with the Veteran's honorable military service from June 1979 to June 1983. The Board notes that the Veteran has also stated that he received Social Security (SSA) disability due to his arthritis. Review of the record reveals the VA has not attempted to obtain these records and associate them with the claims file. See 38 U.S.C. § 5103A(c)(3). However, the Board finds such additional development would serve no useful purpose. The Veteran's claim is not denied based on failure to establish he currently has arthritis, but for failure to establish a nexus to military service. The record already contains the private treatment records from when the Veteran was diagnosed with arthritis and the Veteran has not stated he received any earlier treatment which is not already of record. Accordingly, the Board finds there is no suggestion the SSA records contain relevant evidence not already included in the claims file. Therefore no remand to obtain these records is required. See 38 U.S.C. § 5103A(a)(2) ("Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.") Hearing Loss The Veteran is also seeking service connection for bilateral hearing loss. As a threshold matter, the Court finds the Veteran was exposed to very loud noise during his military service. At this May 2013 hearing the Veteran testified that during service his MOS was as a "topside petty officer" which meant he worked along the flight line. During service he estimated he was exposed to aircraft noise approximately 12 hours a day for approximately two to three years with poorly fitting hearing protection. As such, the Board concedes the Veteran was routinely exposed to acoustic trauma during his military service. However, exposure to acoustic trauma during military service is not sufficient to establish service connection, but rather the evidence must establish the Veteran currently has a hearing loss disability for VA purposes that was caused by his military noise exposure. Service treatment records were reviewed and reflect the Veteran received several hearing evaluations during his military service and the results are summarized below. During the Veteran's entrance examination in January 1979 audiometric testing was conducted and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 15 15 5 LEFT 15 10 15 15 5 Under the regulations hearing impairment constitutes a disability for VA purposes when 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. The Court of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Accordingly, the Board finds the results from the Veteran's entrance examination reflect he had normal hearing at entrance to military service. In November 1979 additional audiometric testing was conducted and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 20 15 5 LEFT 10 10 25 25 15 Accordingly, the Board finds the results of this testing reflect some degree of hearing loss in the Veteran's left ear during military service, however do not constitute hearing loss disability for VA purposes. In February 1981 additional audiometric testing was conducted and the results are summarized in the chart below. HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 15 5 LEFT 10 15 25 20 10 The results from this test again reflect the Veteran had some hearing loss in his left ear, but do not establish he had a hearing loss disability for VA purposes. In January 1982 additional audiometric testing was conducted and the results are summarized in the chart below. HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 15 15 5 LEFT 15 10 15 15 5 The results of this test reflect the Veteran had normal hearing acuity in both ears. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Finally, audiometric testing was conducted at the Veteran's June 1983 separation physical and the results are summarized in the chart below. HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 20 15 10 LEFT 10 20 20 20 15 The results of this testing reflect the Veteran continued to have normal hearing acuity in both ears. Accordingly, the Board finds service treatment records do not reflect the Veteran had any loss of hearing acuity in his right ear at any point during military service. However, these records do reflect the Veteran had some loss of hearing acuity in his left ear during service. The Board acknowledges that the results of audiometric testing performed at separation reflect the Veteran had normal hearing in both ears. However, the Court has held that even if the audiometric testing results at the Veteran's separation from service do not meet the regulatory requirements for establishing a disability at the time, he is not precluding from establish service connection for a current hearing disability. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Post-service treatment records were reviewed but do not contain any treatment records which measured the Veteran's hearing acuity. In February 2012 the Veteran was provided with a VA examination to evaluate his hearing acuity. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 30 30 LEFT 25 25 30 35 50 The examiner specifically noted the above-summarized puretone test results were valid for rating purposes. The examiner also conducted speech recognition testing using the Maryland CNC Test and the Veteran scored 94 percent in both ears. The examiner also noted use of speech discrimination score was appropriate for the Veteran. The examiner opined the Veteran's hearing loss was less likely than not caused by his military service. The examiner explained that "the RAD exam from 1983 is the only exam located in SMRs." However, as discussed above, the Board finds the service treatment record contains several other audiometric testing results in addition to the 1983 testing. By review only the 1983 evaluation the examiner did not have knowledge the Veteran experienced some loss of hearing acuity in his left ear during military service. Accordingly, the Board finds the examiner's opinion is based on an inaccurate factual record and is therefore not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). While the nexus opinion provided by the examiner is not probative, the Board finds the report does not contain any reason to doubt the accuracy of the results of audiometric testing reported by the examiner. Accordingly, these testing results will be used by the Board in adjudication of the Veteran's claim. Accordingly, the Board finds the results from this February 2012 VA examination establishes the Veteran currently has a hearing loss disability in his left ear, as the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater. 38 C.F.R. § 3.385. However, the results fail to establish the Veteran currently has a "hearing loss disability" for VA purposes in his right ear. Id. The auditory threshold at any of frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is not 40 decibels or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are not 26 decibels or greater, and the speech recognition scores is not less than 94 percent in his right ear. Id. It is important for the Veteran to understand these results do not suggest he does not have a hearing problem in his right ear, merely that he does not have sufficient loss of hearing to constitute a disability under VA regulations in his right ear, at this time. In this regard, if the Veteran's hearing in his right ear gets worse, it is recommended that the Veteran reapply for service connection. In regards to the Veteran's left ear the evidence establishes the Veteran was exposed to acoustic trauma during military service, experienced some loss of hearing acuity during his military service, and currently has a hearing loss disability for VA purposes in his left ear. Accordingly, the Veteran's claim for service connection for hearing loss in his left ear is granted. Regarding the Veteran's hearing acuity in his right ear, the evidence fails to establish the Veteran had a hearing loss disability for VA purposes in his right ear at any point during the period on appeal. The Veteran did not experience any loss of hearing acuity in his right ear during military service, and although he currently has some loss of hearing acuity in his right ear, he does not have a hearing loss disability for VA purposes in his right ear (simply stated, it is within a range of normal at this time). Accordingly, the Veteran's claim for service connection for hearing loss in his right ear is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in October 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. As discussed above, the Board acknowledges the VA has not attempted to obtain the Veteran's records from the Social Security Administration. However, the Board determined obtaining these records would serve no useful purpose as the claims file already includes the private treatment records during which the Veteran was first diagnosed with arthritis. The Veteran has not alleged he received any earlier treatment for this condition. Accordingly, the Board finds the Veteran was not prejudiced by any failure to obtain his records from the Social Security Administration. In May 2013 the Veteran testified before the undersigned VLJ in a video hearing. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case the VLJ fully explained the issue on appeal. The Veteran gave testimony and responded to the VLJ's questions regarding the nature and etiology of his claimed arthritic condition and hearing loss, including the Veteran's experiences during military service. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. The Veteran indicated he intended to seek additional treatment for his hearing condition in June 2013. Accordingly the record was held open until August of 2013, however the Veteran did not submit any additional records for consideration by the Board. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. In regards to his claim for service connection for hearing loss the Veteran was provided with a VA examination (the report of which has been associated with the claims file). The Board finds the examiner conducted all required testing and thoroughly reported his results. However, as discussed above, the nexus opinion provided by the examiner was not probative as it was based on an inaccurate factual premise. However, the Board finds the Veteran was not prejudiced by this inadequate nexus opinion. The Veteran's claim for service connection for hearing loss in his left ear was granted, therefore any error was harmless. In regards to the Veteran's right ear his claim for service connection was denied based on failure to establish he currently had a disability for VA purposes, not any failure to establish a nexus to military service. Accordingly, the Veteran was not prejudiced by the inadequate nexus opinion in the VA examination and additional remand is not required. Furthermore, the Veteran has not voiced any issue with the adequacy of the examination. In regards to the Veteran's claim for an arthritic condition the Board acknowledges that no VA examination was provided. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. However, in this case the Board finds although the Veteran has a current disability there is no evidence suggesting this condition was due to any in-service event or injury. Therefore the Board finds the elements of McLendon were not met and no examination was required. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claim for service connection for a general arthritic condition is denied. The claim for service connection for hearing loss in his right ear is denied. The claim for service connection for hearing loss in his left ear is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs