Citation Nr: 1331699 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-23 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a low back disability. 6. Entitlement to service connection for Achilles tendonitis/plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from May 1977 to May 1981 and from February 2003 to October 2003. He also had Reserve service. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for PTSD and assigned a 0 percent rating effective August 24, 2007; and denied service connection for bilateral hearing loss, tinnitus, hypertension, a right shoulder subacromial impingement syndrome, chondromalacia of the right knee, bilateral Achilles tendonitis with plantar fasciitis; and a back disability. The Veteran relocated and his file was transferred to the St. Petersburg, Florida RO. A March 2009 rating decision granted a 30 percent rating for PTSD effective December 12, 2008. An April 2010 rating decision granted service connection for tinnitus and assigned a 10 percent rating effective August 24, 2007. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2011. He submitted additional evidence directly to the Board with a waiver of RO review. 38 C.F.R. § 20.1304 (2012). The issues of entitlement to service connection for diabetes mellitus, gout, chronic fatigue syndrome, and fibromyalgia were raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over those issues and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for hypertension, and a low back disability are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. Hearing loss was demonstrated by audiogram in service, medical evidence shows that the Veteran has bilateral hearing loss by VA standards, and competent and credible lay evidence shows that hearing loss continued after discharge. 2. There is competent and credible lay evidence that the Veteran sustained an injury to his right shoulder while on active duty, and competent medical evidence relates the currently manifest right shoulder disability to his service. 3. There is competent and credible lay evidence that the Veteran sustained an injury to his right knee while on active duty, and competent medical evidence relates the currently manifest right knee disability to his service. 4. There is competent and credible lay evidence that the Veteran sustained an injury to his Achilles tendons on active duty, and competent medical evidence relates the currently manifest Achilles tendonitis/plantar fasciitis to his service. CONCLUSIONS OF LAW 1. Bilateral sensorineural hearing loss was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. A right shoulder disability was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2013). 3. A right knee disability was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2013). 4. Bilateral Achilles tendonitis/plantar fasciitis were incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was provided appropriate notice in letters dated in September 2007, February 2008, February 2010, and December 2010, both prior to and subsequent to the rating decision on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim, including at his videoconference hearing before the undersigned. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Evidence that has been determined to be unavailable has been certified as unavailable, and the appellant has supplemented the record where he was able. VA has obtained examinations with respect to the claims on appeal and the examinations are adequate and sufficient upon which to decide the claims addressed herein. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When VA provides an examination, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Consequently, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for a disability resulting from injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology of a chronic disability identified in 38 C.F.R. § 3.309(a) from the time of service until the present is required where the chronicity of a condition manifested during service has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Certain chronic disabilities, such as sensorineural hearing loss (as an organic disease of the nervous system) or arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Active military service includes (1) active duty (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a) (2013). Service connection is available for injuries and diseases incurred during active duty or ACDUTRA but (except for exceptions listed) only for injuries, and not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). If a claim relates to period of active duty for training, a disease or injury resulting in disability must have manifested itself during that period. Paulson v. Brown, 7 Vet. App. 466 (1995). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves. 38 C.F.R. § 3.6(c) (2013). INACDUTRA is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2013). Annual training is an example of active duty for training, while weekend drills are inactive duty training. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 (2013). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001). Competency of evidence must be distinguished from weight and credibility, which are factual determinations in determining the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). If all the evidence is in relative equipoise, reasonable doubt will be resolved in the claimant's favor, and the claim will be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Hearing Loss Some of the Veteran's service medical reports have been reported to be unavailable. In conjunction with his videoconference hearing, the Veteran submitted copies of records that he had in his possession, including an induction report dated in May 1977 that showed normal hearing. Two subsequent audiograms were conducted, but the dates of evaluation are not readily apparent from the document copy. It appears that one is dated in December 1978 and one in February 1979, during the Veteran's initial period of active duty. The December 1978 audiogram indicates that thresholds of greater than 20 were recorded in the right ear at 3000 and 6000 hertz; and in the left ear at 4000 and 6000 hertz. The February 1979 audiogram indicates that thresholds of greater than 20 were recorded in the right ear at 6000 hertz; and in the left ear at 4000 hertz. A separation audiogram for the first period of active duty is not of record. The Veteran testified in support of his claim at a hearing in June 2011 that he was exposed to acoustic trauma, including in combat operations in the Middle East. Those statements are consistent with his duties outlined in his service personnel records. Upon VA examination in May 2008, audiometric studies revealed puretone thresholds of 5, 5, 15, 40, and 65 decibels in the right ear and 5, 5, 20, 60, and 70 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 hertz. The examiner stated that an enlistment or separation audiogram was not available for review, but audiograms in 1989, 1993, 1994, 2000, and 2005 showed a mild to severe high frequency hearing loss at 3000 to 6000 hertz. Since enlistment and separation examination reports were not of record, the examiner concluded that an opinion could not be made without resorting to speculation. Private medical statements dated in May 2010 and June 2011 show that the Veteran has been diagnosed with bilateral sensorineural hearing loss. The Veteran's enlistment examination in May 1977 shows normal hearing, and he has submitted two audiograms that appear to have been conducted during his first period of active duty that show decibel readings in excess of 20, which has been found to represent a demonstration of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Although a separation examination is not of record, and the May 2008 VA examination was inconclusive, the Board finds that the Veteran's lay evidence that he has experienced difficulty with his hearing since discharge from service is credible. The current audiograms demonstrate bilateral hearing loss by VA standards, and additional service medical reports show some hearing loss during a period of active duty. Therefore, the Board finds that the evidence is sufficient to establish that the Veteran's current hearing loss disability was incurred in service. Consequently, by resolving reasonable doubt in favor of the Veteran, the Board concludes that service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 5017 (West 2002); 38 C.F.R. §§ 3.102, 3.303(d), 3.385 (2013); Hensley v. Brown, 5 Vet. App. 155 (1993). Right Shoulder, Right Knee, and Bilateral Achilles Tendonitis/Plantar Fasciitis Some of the Veteran's service medical reports have been reported to be unavailable. The Veteran testified in support of his claim at a hearing in June 2011 that he sustained injuries to his right shoulder, right knee, and Achilles tendons during service. Those statements are consistent with the duties outlined in his service personnel records. Additionally, his spouse provided statements supporting his assertions. Upon VA examination in June 2008, the diagnoses were right shoulder subacromial impingement syndrome, right knee chondromalacia patella, bilateral ankles status post Achilles tendonitis, no complication, no sequelae, and bilateral plantar fasciitis. The examiner concluded that it was "as likely as not" that the Veteran's currently manifest conditions were "related to physical training he performed during the course of his Marine Corps career." The examiner explained that the disabilities were degenerative in nature and commonly related to repetitive physical training activities the Veteran was required to perform in service. In a May 2010 private treatment record, it was noted that the Veteran had right shoulder rotator cuff tendonitis, bursitis, and right knee patellofemoral syndrome that were "consistent with service related activities." In a June 2011 letter, Michael P. Roberts, M.D., reported that the Veteran had "ongoing issues" with joint pain in his feet, knee, and shoulder that were "directly related and date back to time serving in the military." The Veteran is competent to provide testimony as to having experiencing specific injuries in service and to report continued complaints of pain after discharge. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994) (Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board finds that his statements are credible and consistent with the circumstances of his service. Finally, there are three medical statements, one VA and two private, that relate the Veteran's currently manifest right shoulder disability, right knee disability, and bilateral Achilles tendonitis/plantar fasciitis to his service. Notably, there are no medical opinions to the contrary. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for a right shoulder disability, a right knee disability, and bilateral Achilles tendonitis/plantar fasciitis is warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for bilateral hearing loss is granted. Service connection for a right shoulder disability is granted. Service connection for a right knee disability is granted. Service connection for bilateral Achilles tendonitis/plantar fasciitis is granted. REMAND The medical evidence appears to show that hypertension was diagnosed outside a period of active duty. In a July 2001 medical report, it was noted that he was seen for cardiovascular consultation "due to recent diagnosis of hypertension." His first period of active duty ended in May 1981 and his second period of active duty did not begin until February 2003. However, in subsequent statements, both the Veteran and his spouse alleged that his hypertension was aggravated by his service-connected PTSD. Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2013). Secondary service connection includes instances in which an established service-connected disability results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310, Part 4 (2013). In light of the additional allegations presenting another theory of entitlement for service connection for hypertension, the Board finds that a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). Additionally, the Veteran has submitted an additional service treatment report that documents complaints of low back pain on a period of active duty. However, the June 2009 VA examination did not include an evaluation or opinion related to the Veteran's lumbar spine. Consequently, another VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). The Veteran is advised that failure to report for a VA examination, without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2013). Upon remand, ongoing VA medical records and any additional evidence to support the claim should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); 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: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for hypertension, PTSD, and a low back disability since June 2008. After securing the necessary release, obtain those records, including VA outpatient treatment reports during the appeal period. 2. Then, schedule the Veteran for a VA joints examination to determine the nature and etiology of the claimed low back disability. The examiner must review the claims file and must note that review in the report. All studies or tests deemed necessary should be conducted. After a thorough review of the Veteran's records including his service medical records, and a full clinical evaluation, the examiner should answer the following questions and identify the basis upon which any opinion is based: (a) Does the Veteran have a chronic low back disability? (b) Is at least as likely as not (50 percent or greater probability) that any currently manifest low back disability began in or is otherwise related to the Veteran's service? 3. Schedule the Veteran for an VA examination to determine whether hypertension is aggravated by service-connected PTSD. The examiner must review the claims file and must note that review in the report. All studies or tests deemed necessary should be conducted. After a thorough review of the Veteran's records, and a full clinical evaluation, the examiner should answer the following questions and identify the basis upon which the opinions are based: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is due to or caused by service-connected PTSD? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is proximately aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected PTSD? If aggravation is found, the examiner should address the baseline level of disability before it was aggravated by any service-connected disability. 4. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs