Citation Nr: 1331920	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  12-15 984	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for a right inguinal hernia.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1964 to October 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  A notice of disagreement was filed in November 2011, a statement of the case was issued in May 2012, and a substantive appeal was received in June 2012.
 
The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

The right inguinal hernia issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action on his part is required.


FINDING OF FACT

The Veteran does not have a current diagnosis of bilateral hearing loss for VA compensation purposes.


CONCLUSION OF LAW

Bilateral hearing loss disability was not incurred in or aggravated by active duty service.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  Such notice must be provided to a claimant before the agency of original jurisdiction's initial unfavorable decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Here, the RO provided VCAA notice to the Veteran in a February 2011 letter prior to its August 2011 rating decision.  This letter informed the Veteran of the information necessary to prove entitlement to service connection, the types of evidence VA would assist him in obtaining, and his responsibility to identify relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  Accordingly, the requirements the United States Court of Appeals for Veterans Claims set out in Pelegrini have been satisfied.

The notice requirements must also apply to all five elements of a service connection claim:  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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The February 2011 letter provided notice of the types of information needed to substantiate the Veteran's claim.  The letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal.  

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b).

Furthermore, with regard to the hearing loss issue, the duty to assist has also been satisfied.  38 U.S.C. § 5103A(a)(1); id. at § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2).  The Veteran's service treatment records and VA medical records have been obtained.  Moreover, the Veteran has not alleged, and the record has not otherwise shown, that the contents of any potentially outstanding treatment records would lend material support to his claim.  Thus, the Board finds that the record as it stands includes adequate competent evidence to support a decision on the merits, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4). 
In June 2011, the Veteran was provided a VA audiological examination.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the adequacy of such.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, the examination and opinion rendered was sufficient.  The examiner considered the claims file and relevant medical facts and principles, and addressed the nature and etiology of the Veteran's bilateral hearing loss.  The Board acknowledges that the June 2011 VA examination contains no etiological opinion.  Nonetheless, the examination remains adequate for purposes of adjudicating the claim, as the examiner explains that no opinion was provided due to the lack of a compensable diagnosis.  Accordingly, the Board finds that VA has satisfied its duty to assist, and to provide an adequate examination under Barr.  See id.; 38 C.F.R. § 3.159(c)(4).



Laws and Regulations

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  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).

Bilateral Hearing Loss

The Veteran claims his current bilateral hearing loss disability is related to his active duty service, and therefore seeks entitlement to service connection.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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.

Upon June 2011 VA examination, the Veteran exhibited auditory thresholds in his left ear of 0, 5, 5, 20, and 25 decibels in the 500, 1000, 2000, 3000, and 4000 Hertz frequencies.  In his right ear, the Veteran recorded auditory thresholds of 5, 5, 5, 20, and 10 decibels in the same frequencies.  His Maryland CNC word list speech recognition scores were 100% in both ears.  As these results do not satisfy the requirements of 38 C.F.R. § 3.385, the Board finds the Veteran does not have a current compensable bilateral hearing loss disability.

The Board acknowledges that the Veteran has subsequently claimed his June 2011 VA examination was inaccurate as he was "trigger happy" and was reading his examiner's lips during the word recognition test.  The Board declines to accept this assertion as a valid reason for finding the examination results inadequate.  After all, the Veteran was afforded the examination to assist him with his claim for compensation based on hearing loss.  His assertion is not credible when considered in light of the fact that it was in his best interests to have the examination confirm hearing loss disability.  There is no logical reason that he would have deliberately tried to hide his hearing loss from the examiner when he was seeking compensation for that disability. 


ORDER

Service connection for bilateral hearing loss is not warranted.  To this extent, the appeal is denied. 


REMAND

Service treatment records do not document any complaints or clinical findings related to a right inguinal hernia.  Contrary to his assertion that he was not given a discharge examination, the claims file includes the report of an October 1968 separation examination.  In the section for the Veteran to report medical history, he specifically checked the box to deny rupture/hernia.  Clinical examination of the abdomen and viscera and genito-urinary system was normal.   

However, VA medical records show that in January 1969 (just 3 months after the Veteran's discharge from service) a right inguinal hernia was discovered on a pre-employment physical examination.  The Veteran underwent surgical repair in February 1969.  

The Veteran has stated that he was unaware that he had a hernia prior to the pre-employment examination.  In light of the close proximity in time of the discovery of the hernia to the Veteran's discharge from service, the Board believes that a VA examination is warranted to allow for informed appellate review. 

Accordingly, the case is hereby REMANDED for the following actions:

1.  The Veteran should be scheduled for a VA hernia examination.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  

After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's right inguinal hernia was manifested during his period of active service, or is otherwise causally related to such service?  The examiner should furnish a rationale to include discussion of the significance, if any, of the proximity in time of the discovery of the hernia to the Veteran's discharge from service. 

2.  After completion of the above, the RO should review the expanded record and determine is service connection for right inguinal hernia is warranted  If the decision remains adverse to the Veteran, then the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review. 
		
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 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 (West Supp. 2012).



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs