Citation Nr: 1331461	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  12-17 217	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. All, Associate Counsel




INTRODUCTION

The Veteran had active service from February 1969 to December 1970, including combat service in the Republic of Vietnam.  His decorations include, among other things, the Purple Heart and Combat Infantry Badge.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office (RO) in Wichita, Kansas.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file revealed additional evidence in the form of VA treatment records pertinent to the issues on appeal.

The issue of entitlement to an initial compensable rating 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.


FINDING OF FACT

The competent evidence of record does not indicate that the Veteran has been diagnosed with a chronic disability resulting in low back pain.


CONCLUSION OF LAW

A low back disability was not incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).




REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In the instant case, VA's duty to notify has been satisfied through the notice letter dated September 2010, which fully addressed all notice elements.  This letter informed the Veteran of what evidence was required to substantiate his claim for service connection, and of the Veteran's and VA's respective duties for obtaining evidence.  The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.

The Board, therefore, finds that all notices required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters.

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Service treatment records are associated with the claims file.  All post-service treatment records and reports identified by the Veteran have also been obtained.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.

A VA examination was not provided in conjunction with the Veteran's service connection claim for a low back disability, and the evidence of record does not warrant one.  See 38 C.F.R. § 3.159(c)(4).  VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease.  Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As discussed below, there is nothing in the record beyond the Veteran's own lay statements that he has a current low back disability.  The Veteran's conclusory lay statements alone are insufficient to trigger VA's duty to provide an examination with an opinion.  Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010).  Thus, VA is not required to provide the Veteran with a VA examination in conjunction with his back disability claim.

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Analysis

Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C.A. § 7104.  In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  The Federal Circuit has also 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).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists, which neither satisfactorily proves nor disproves the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection also may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d).  It is not enough, however, that an injury or disease occurred in service; there must be a chronic disability resulting from that injury or disease.  In order to prevail on the issue of service  connection, there must be competent evidence of "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established on a presumptive basis for certain disabilities, including degenerative arthritis, that were manifested following service. 38 C.F.R. §§ 3.307 , 3.309.

VA is required to accept a combat Veteran's statements as to injuries sustained in combat, so long as the statements are consistent with the circumstances, conditions, or hardships of the Veteran's service, and there no is clear and convincing evidence to the contrary.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).

The Veteran seeks entitlement to service connection for a low back disability as directly related to active service in Vietnam.  Available service treatment records are negative for any history of back pain or injury.  The December 1970 separation examination revealed a normal spine, and a statement signed by the Veteran on the examination report asserted that his "condition is good" and "has not changed" since his last physical.  No complaint of back pain or injury was noted.

The Veteran contends that his low back pain is the result of "the heavy packs [he] carried and the constant running" during service, and denies anything post-service "that would have caused great strain or injury" to his back.  See August 2011 notice of disagreement; see also June 2012 VA Form 9 (carrying and running with the heavy packs was a "major stress" that "caused the start of my back problems").

While 38 C.F.R. § 3.304(d) requires VA to accept a combat Veteran's statements as to injuries sustained in combat, within the legal parameters described above, the Board notes that the Veteran has not described an actual injury to his back during combat.  Instead he merely speculates that his claimed low back disability may have been caused by the heavy packs and constant running.

The Board acknowledges the Veteran's complaints of low back pain and concedes that the he may have experienced low back pain during combat; however, there is no competent evidence of a current low back disability, and no allegation that a low back disability has been diagnosed.  Although the Veteran received a impression of "chronic low back pain" from a VA physician in September 2011 (with nothing else stated with respect to the back, pain is not, in and of itself, a disability for the purposes of service connection.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted), appeal dismissed in part, and vacated and remanded in part sub nom, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  As such, the low back pain that has been diagnosed in this case is not considered a compensable disability for VA purposes.  

Without medical evidence of a current disability at some point during the pendency of the claim, service connection cannot be granted.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer  v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability).  Absent a current disability, the established fact of in-service low back pain is not germane to the instant appeal.

Based on a review of all lay and medical evidence, the Board finds the preponderance of the evidence to be against the claim.  As such, the benefit of the doubt rule is not applicable, and the claim of service connection for a low back disability must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for a low back disability is denied.


REMAND

In October 2010, the Veteran was afforded a VA audiological examination.  The examination indicated bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385.  A May 2011 addendum opinion indicated that the Veteran's hearing loss is at least as likely as not aggravated by or a result of military related acoustic trauma.

In June 2011, the Veteran was service connected for bilateral hearing loss, with a disability rating of 0 percent.  The Veteran timely filed a notice of disagreement, stating that his disability "seems to be even worse than when [he] first filed."  He requested an updated VA audiological examination.

The Veteran is competent to testify that his hearing loss has worsened since the 2010 examination.  The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination.  Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (April 7, 1995).  Because the Veteran asserts that his hearing disability has worsened, the Board finds that another VA audiological examination to determine the extent of the Veteran's service connected bilateral hearing disability is warranted.
Accordingly, the case is REMANDED to the RO via the AMC for the following action:

1. Schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral hearing loss.  The entire claims file, to include any pertinent medical records contained in Virtual VA, must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not otherwise available must be printed and associated with the paper claims file for the examiner's review.  All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished.  The examiner should provide a complete report of audiometric findings and also specifically comment on the impact of the Veteran's bilateral hearing loss upon his social and industrial activities, including his employability.

2. After the requested examination has been completed, the report should be reviewed to ensure that it complies with the directives of this remand.  If the report is deficient in any manner, it should be returned to the examiner for corrective action.

3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence.  If a benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response before the case is returned to the Board.

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 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).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs