Citation Nr: 1331055 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 07-26 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a bilateral elbow disorder. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 1978 and September 1986 to February 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2009, the Board denied the claims on appeal. The Veteran appealed the Board's decision to the Veterans Claims Court. In December 2010, the Court issued a Memorandum Decision, which vacated the February 2009 Board decision, and remanded the case for compliance with the terms of the decision. In June 2011, the Board remanded the claims for additional development and adjudicative action. The issues have been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT Bilateral hearing loss for VA purposes, a bilateral elbow disorder, and a low back disorder have not been shown. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service; bilateral hearing loss is not currently shown. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. A bilateral elbow disorder was not incurred in or aggravated by service; a bilateral elbow disorder is not currently shown. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. A low back disorder was not incurred in or aggravated by service; a low back disorder is not currently shown. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection can also be established through application of statutory presumptions. Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309. Other organic diseases of the nervous system is listed as a "chronic disease" and includes sensorineural hearing loss. See M21-1MR, Part III.iv.4.B.12.a; see also Cromley v. Brown, 7 Vet. App. 376, 378 (1995). Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. §§ 1117, 1137 (West 2002); 38 C.F.R. § 3.317(a)(1) (2012). In this case, the Veteran's DD Form 214 notes active service from September 1986 to February 1993; however, does not reflect foreign service during this period. As a result, the Board finds that he is not a Persian Gulf Veteran, thus service connection for the claims on appeal on a presumptive basis for a Persian Gulf Veteran does not apply in this case. The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Finally, 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, 1131; 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 Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Bilateral Hearing Loss A hearing loss disability for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; 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 (controlled speech discrimination) test are less than 94 percent. 38 C.F.R. § 3.385 (2012). See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Service treatment records reveal an audiology evaluation in June 1987 showed thresholds no higher than 25 decibels in any frequency. In March and May 1988, the thresholds were no higher than 15 decibels in any of the relevant frequencies. It is not clear whether he underwent an audiogram at the time of discharge in January 1993. The 250 Hertz and 800 Hertz levels are checked but there is no specific thresholds indicated. Nonetheless, the clinical evaluation of his ears was normal. Moreover, he self-reported no hearing loss. Since separation from service, VA outpatient treatment records are silent as to any complaints or treatment of bilateral hearing loss. Pursuant to the June 2011 Board remand instructions, a February 2012 examination for hearing loss and tinnitus revealed thresholds no higher than 25 decibels in any frequency and Maryland CNC test results were 100 percent in the right ear and 96 percent in the left ear. The Board acknowledges there is some degree of bilateral hearing loss beyond the normal ranges as shown by 25 decibels at the 4000 Hertz range in the right ear and at the 3000 Hertz range in the left er. See Hensley, 5 Vet. App. at 157. Nonetheless, the criteria for a bilateral hearing loss disability for VA purposes are not met to show the manifestation of the disability at any time since separation from service. Thus, the Board finds that the criteria for a current bilateral hearing loss disorder for VA purposes is not met and the appeal is denied. Bilateral Elbow Disorder Service treatment records do not show complaints of, or treatment for, or a diagnosis related to a bilateral elbow disorder. While the Veteran reported a history of elbow pain at the time of his discharge, the clinical evaluation of his upper extremities was normal. Since separation from service, the Veteran complained of pain in his elbows in March 2006 but no diagnosis was made. He also complained of pain in the right elbow in July 2006 and assessed with medial epicondylitis. Pursuant to June 2011 Board remand instructions, the Veteran underwent an examination of the elbow and forearm in March 2012. He reported he started to have bilateral elbow and forearm pain during service related to maintenance work on ships. However, following the clinical evaluation and review of the claims file, the examiner noted the Veteran did not have and had never had an elbow or forearm condition and x-ray results of the elbows revealed normal results. As no current elbow pathology is shown, the appeal is denied. Low Back Disorder Service treatment records indicate that the Veteran was involved in a motor vehicle accident in March 1976 which led to an x-ray of his lumbar spine, but no results of the examination were noted. Additionally, no disorders were noted at his first separation physical in March 1978. The first indication of a low back disorder in service was noted in October 1988, when the Veteran complained at a sick call of low back pain radiating down his left leg. However, he was able to walk normally, exhibited no neurological symptoms and was diagnosed with a muscle spasm. This pain persisted "off and on" into November 1988. The next complaint was in August 1990, when the Veteran reported a two week history of back pain. As before, he was diagnosed with a back strain and was placed on light duty. He complained of back pain and radiating pain in November 1990 where a herniated disc was contemplated, in July 1991, and again in November 1991. There, he complained of radiating pain, and was diagnosed again with a muscle strain. Most notably, although he noted a history of back pain while in service at his separation physical in January 1993, the clinical evaluation of his low back was normal at the time of discharge. Since separation from service, the Veteran reported "episodic pain in his back" in January 2004 and again in May 2004. However, there was no diagnosis of back pathology. He also complained of lower back pain in September 2007 and assessed with a backache. Pursuant to the June 2011 Board remand, the Veteran underwent an examination in March 2012. Clinical findings revealed mild levoscoliosis, no major abnormality, and the examiner noted the Veteran was diagnosed with low back strain in 1986. Following the clinical evaluation and review of the claims file, the VA examiner concluded "[t]here is currently no evidence of disability related to the claimed condition." As no underlying pathology has been identified, the appeal is denied. The Board notes the Veteran July 2013 contention that the March 2012 examination report was inadequate because the examiner failed to consider the documented in-service complaints and treatment for the back. Nevertheless, the Board finds there is no indication that further development is necessary as the issue in dispute is whether the Veteran has a current disability to account for his symptoms of back pain and the evidentiary record does not indicate that such a back pathology currently exists. Pain alone does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). With regard to all the claims on appeal, the Veteran was informed in March 2006 and April 2006 notice letters that he must have evidence of a current disability. He has not presented any competent and probative evidence nor has he provided information as to where VA could obtain such evidence. The Board has particularly considered his documented symptoms of bilateral elbow and back pain, as noted above; however, VA does not grant service connection for symptoms alone without an identified basis for those symptoms. Since the competent medical evidence weighs against the conclusions that the Veteran currently has bilateral hearing loss for VA purposes, a bilateral elbow disorder, and a low back disorder, the service connection criteria requiring the presence of a current "disability" have not been met and service connection cannot be granted for these claims. See Brammer, 3 Vet. App. at 225. In light of the above discussion, the Board concludes that the preponderance of the evidence is against these claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in March 2006 and April 2006 that fully addressed all notice elements and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in April 2006, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, 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). The RO has obtained VA outpatient treatment records, and specific VA medical examinations pertinent to the issues on appeal were obtained in February 2012 and March 2012. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for bilateral hearing loss is denied. Service connection for a bilateral elbow disorder is denied. Service connection for a low back disorder is denied. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs