Citation Nr: 1331407 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-11 983 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for left foot injury. 3. Entitlement to service connection for back condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from November 1979 to March 1985. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of service connection for bilateral hearing loss 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. FINDINGS OF FACT 1. The Veteran does not have a current back disability for VA purposes that was incurred in or as a result of service. 2. The Veteran does not have a current left foot disability for VA purposes that was incurred in or as a result of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2013). 2. The criteria for service connection for a left foot disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, 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. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Back In January 2009, the Veteran filed a claim seeking service connection for "back pain" which he believed had resulted from carrying a heavy back pack during service and from hiking. He asserted that he had received treatment for his back in 1984 at Camp Geiger/Lejeune. However, as will be discussed, the Veteran has not been diagnosed with a "chronic disease" of the back listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service treatment records reflect that on a December 1983 report of medical history the Veteran reported recurrent back pain and the examiner noted it to be non-specific lower back pain; however, the Veteran's spine was found to be normal on examination. Moreover, on his March 1985 report of medical history conducted in conjunction with his discharge he specifically denied any recurrent back pain and his back was found to be normal on physical examination. Following service, there is no treatment shown for any back problems for a number of years; and as noted, a chronic back disability has not actually been diagnosed by either physical examination or by x-ray. For example, a February 2010 lumbar spine x-ray showed no acute fracture, dislocation, or significant degenerative change. At a December 2012 DRO hearing the Veteran stated that during service he carried packs from 50 to 80 pounds, dug foxholes, and loaded cargo onto aircraft. He reported experiencing back pain during service but denied having ever sought any medical treatment for it. In March 2013 the Veteran was afforded a VA examination which showed normal range of motion with no x-ray evidence of pathology (specifically no arthritis or significant degenerative change was seen), although the Veteran did appear to experience some pain on range of motion testing. The Veteran reported having experienced on and off back pain since 2003, was not treated for a back condition in service, and had not been diagnosed with a back condition. The examiner noted that the Veteran had not ever been diagnosed with a back condition, and opined that even if the Veteran did have a current back condition it was less likely than not to have been caused by his military service. The examiner noted the first instance of post-service treatment for back pain reflected in the Veteran's records is in February 2010 with no suggestion of a chronic back condition post-discharge. The examiner explained that "the [V]eteran's testimony of his back condition starting around 2003 and the nonspecific nature of the reported non-diagnostic back pain on military discharge with no chronic back condition post-military discharge thereafter" led him to conclude that the Veteran's back disability was not incurred in service and was not related to the low back pain the Veteran reported in December 1983. VA treatment records reflect no diagnosis of a specific back disability, and only limited complaints of back pain. In August 2012, the Veteran fell off a ladder and landed on his hip. On physical examination he did not have any tenderness along thoracic or lumbar vertebrae, but did have some tenderness in left lumbar paraspinal musculature. However, once again, no chronic back disability was diagnosed. In April 2013 the Veteran reported he injured the right side of his back lifting his granddaughter, but he specifically denied any previous history of low back pain except for when carrying combat packs in service. The Board has considered the Veteran's complaints of current back pain, but finds that service connection is not warranted for a back disability. The Board has considered the Veteran's complaints of occasional back pain. Unfortunately, VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. The VA needs to identify a disability, not symptoms of a disability. Accordingly, service connection cannot be granted for symptoms of a disability. Here, the evidence does not show that any pathology has been identified to account for the Veteran's back pain or that he has been diagnosed with any back condition. In fact, a February 2010 lumbar spine x-ray was normal. While the March 2013 VA examiner noted the Veteran's pain on motion, the Veteran was found to have normal range of motion and no functional loss was noted. Further, even if the Veteran was found to have a current back disability, the only medical opinion of record, that of the March 2013 VA examiner, is that the Veteran's current back condition is less likely than not related to his service. Therefore, while the Veteran has contended that service connection is warranted, the competent medical evidence does not corroborate his opinion. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what symptoms he feels, such as back pain, he does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau, 492 F.3d at 1376-77. Thus, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for service connection for a back disability must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Left Foot In January 2009, the Veteran filed a claim seeking service connection for a "left foot" injury as a result of a fork lift accident. However, as will be discussed, the Veteran has not been diagnosed with a "chronic disease" of the foot listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's service records reflect that on entrance into service in November 1979 the Veteran reported no foot trouble and his feet were found normal on examination. He further reported no foot trouble on a report of medical history in December 1983 and his feet were found normal on examination. In January 1985 the Veteran was assessed with a soft tissue injury to his left foot, specifically the heel, which was the result of having been hit by a forklift. However, his feet were found normal at his discharge examination in March 1985, and he denied any history of foot trouble at that time. Moreover, following service there is no record of the Veteran ever receiving medical treatment for any foot problem. In fact, VA records show no treatment for or diagnosis of a foot condition after service. At his December 2012 DRO hearing the Veteran explained that while in service, a forklift clipped the flat part of his foot and he was told to lie down for a day. The Veteran reported his foot hurts currently depending on the weather and how long he stands on it. He noted that he stands on his feet a lot for work. The Veteran's spouse testified that the Veteran sometimes loses his balance when walking and has to sit down due to his foot. The Veteran was afforded a March 2013 VA examination to investigate whether the Veteran had a current left foot disability, and if so to determine its etiology. The examiner found the Veteran's foot to be normal on examination with a normal x-ray. The examiner noted no point tenderness on the foot and no scarring to the left lateral foot where the Veteran reported being hit by the forklift. The examiner found no current findings with regard to the Veteran's left foot to associate with foot injury he described during service. The examiner also noted that the Veteran had not found to have any residual foot condition on his discharge examination in March 1985, which he stated made it appear that the Veteran's in-service soft tissue injury had resolved. The Board again notes that VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms, needing to identify a disability, not symptoms of a disability. As such, service connection is not generally granted for symptoms of a disability, such as pain. Here, the Veteran has not been diagnosed with a foot disability, and the March 2013 VA examiner found his foot to be normal on examination and on x-ray. Further, even if the Veteran was found to have a current left foot disability, the only medical opinion evidence of record, that of the March 2013 VA examiner, is that the Veteran does not have a foot condition related to his service, to include as due to being hit by a forklift in January 1985. While the Veteran as a lay person is competent to report things that are capable of lay observation, including foot pain and the in-service occurrence of his foot being hit by a forklift, he is not competent to offer a diagnosis or opine as to the etiology of his claimed foot condition, as these are medically complex questions. Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for service connection for a left foot disability must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Duties to Notify and Assist 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2009. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection for bilateral hearing loss, back disability, and left foot disability and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. Thus, the duty to notify has been fully satisfied as to timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and VA treatment records. Although the Veteran's service treatment records indicate that his health record from prior to November 1983 was destroyed, the Board notes that the Veteran reported he never sought treatment for his back in service and his claimed left foot injury occurred after that date (and records describing that in-service injury have been obtained). 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 claim that has not been obtained. The Veteran was afforded a VA medical examination in March 2013. The examiner, a medical professional, obtained an accurate history, listened to the Veteran's assertions, and performed the necessary tests. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the Veteran testified at a hearing before the RO, and was offered the opportunity to testify at a hearing before the Board, but he declined. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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, 16 Vet. App. 183. ORDER Service connection for back disability is denied. Service connection for left foot disability is denied. REMAND Although the Board regrets any further delay in adjudicating the Veteran's claim, his claim for service connection for bilateral hearing loss must be remanded to ensure that the Veteran receives an adequate medical opinion. The Veteran contends that he was exposed to loud noise in the military including explosions and helicopters and that exposure led to the onset of his bilateral hearing loss. He testified at a December 2012 DRO hearing that he was not exposed to loud noise in his jobs after service and his wife testified that she first noticed his hearing had declined about a year after he left service. Impaired hearing is considered a disability for VA purposes 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 (2012). The Veteran's March 1985 discharge examination did not demonstrate impaired hearing for VA purposes under 38 CFR § 3.385. However, in March 2013 the Veteran was afforded a VA audiological examination that showed bilateral sensorineural hearing loss. The United States Court of Appeals for Veterans Claims (Court), in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that service connection may 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. See 38 C.F.R. § 3.303(d). In this case, the March 2013 VA examiner opined that the Veteran's bilateral hearing loss is less likely than not caused by or a result of his military noise exposure, essentially because his hearing was normal at separation. The VA examiner offered no additional rationale for his opinion; therefore the Board finds that it stands in contrast to the ruling in Hensley. Specifically, the opinion did not contain discussion of any other factors aside from the fact that no hearing loss was detected at the time of the Veteran's discharge from service. Moreover, the examiner did not address the Veteran's contentions of in-service noise exposure or the testimony of the Veteran's wife that she noticed diminished hearing acuity approximately one year after service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the forgoing, a supplemental VA opinion as to the etiology of the Veteran's bilateral hearing loss is necessary. The rationale for the opinion must include a complete discussion of all potential factors so as to determine whether there is a relationship between the Veteran's current bilateral hearing loss and service. Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental medical opinion from the March 2013 VA examiner or, if unavailable, another suitably qualified VA examiner, addressing the likelihood of a relationship between the Veteran's bilateral hearing loss and his service, to include noise exposure therein. There is no need to schedule further examination of the Veteran, unless the reviewer concludes such is necessary. All relevant records, to include a copy of this Remand as well as the claims folder, must be made available to and reviewed by the reviewer/examiner in conjunction with the examination or review. Based on review of the record, the reviewer/examiner should render an opinion as to whether it is at least as likely as not (i.e., to a 50 percent degree of probability or greater) that the Veteran's bilateral hearing loss had its onset during military service or is otherwise causally or etiologically related to the Veteran's active service, to include noise exposure, or whether such a relationship to service is unlikely (i.e., a probability of less than 50 percent). In so doing, the examiner should discuss causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that any current hearing loss was caused by noise exposure in service as opposed to some other cause. The examiner should also discuss the relevance, if any, of the Veteran's reports of military noise exposure and the testimony of his wife that she noted diminished hearing acuity approximately one year after separation. 2. When the development requested has been completed, the RO/AMC has ensured compliance with the requested actions, and any additional notification and/or development deemed necessary has been undertaken, readjudicate the claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a SSOC and appropriate period of time to respond. Thereafter, return the case to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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. ______________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs