Citation Nr: 1332173 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 08-26 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for headaches, to include as due to undiagnosed illness. 3. Entitlement to service connection for a stomach disorder, to include as due to undiagnosed illness. 4. Entitlement to service connection for a left ankle disorder. 5. Entitlement to service connection for left Achilles tendon disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to July 1993. The Veteran also served in the National Guard. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO). By a November 2009 rating decision, the RO granted service connection for PTSD, which represented a full grant of the benefit sought with regard to that issue. By a May 2011 rating decision, the Appeals Management Center (AMC) granted service connection for right ear hearing loss and tinnitus. This represents a full grant of the benefits sought with regard to those issues. (The issue of service connection for left ear hearing loss remained denied.) The remaining issues on appeal are reflected on the title page, supra. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in March 2010. A transcript of the hearing is associated with the claims file. In June 2010, the Board remanded this case for further development. The issues of entitlement to service connection for headaches, stomach disorder, left ankle disorder, and left Achilles tendon disorder are addressed in the remand that follows the decision below. FINDING OF FACT The Veteran does not have left ear hearing loss related to his military service. CONCLUSION OF LAW The Veteran does not have left ear hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in October 2006 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Additionally, the Veteran was sent a November 2007 letter that addressed the type of information necessary to substantiate a claim for service connection due to undiagnosed illness. Accordingly, no further development is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a March 2010 video hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's June 2010 remand, VA provided the Veteran with a VA audiological examination in October 2010. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, performed a thorough clinical evaluation, and then offered an opinion as to the nature of the claimed disability, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. The June 2010 remand also instructed VA to obtain additional records relating to the Veteran's National Guard service. As noted in the remand portion below, those records have not been obtained. The Veteran has not alleged any left ear injury during his National Guard service. Indeed, the Veteran's claimed in-service noise exposure has been conceded. As such, the failure to obtain the additional National Guard records does not affect the Board's ability to proceed on a decision on the merits for this issue. Thus VA has substantially complied with the June 2010 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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 v. Principi, 16 Vet. App. 183 (2002). Left Ear Hearing Loss Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). For 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, or 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these 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. As a chronic condition, sensorineural hearing loss is entitled to presumptive service connection if the disease became manifest to a degree of 10 percent or more within one year of the Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309. Even if the Veteran was not entitled to service connection on a presumptive basis, he was not precluded from establishing service connection for left ear hearing loss with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In order to prevail on the underlying issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records include a May 1989 audiometric examination which shows some hearing impairment. See Hensley v. Brown, 5 Vet. App. 155 (1993)(noting that the threshold for normal hearing is from 0 to 20 decibels); 38 C.F.R. § 3.385. This examination noted that the Veteran was routinely exposed to hazardous noise. In his lay statements and testimony, the Veteran has reported in-service noise exposure due to exposure to tank fire, rocket fire, humming of a tank, and radio chatter in conjunction with his duties as an armored crewman. He is competent to provide lay testimony regarding his in-service noise exposure and the Board finds his statements are credible. Thus, in-service noise exposure is conceded. The October 2010 VA examination found the Veteran's left ear hearing loss insufficient to qualify as a disability for VA purposes as none of his auditory thresholds for the relevant frequencies was 40 decibels or greater, only two (1000 hertz and 4000 hertz) were above 26 decibels, and his speech recognition score was 94 percent. See 38 C.F.R. § 3.385. Likewise, the additional evidence of record does not show a left ear hearing loss disability. There is no indication in the record that the Veteran has met the requirements of 38 C.F.R. § 3.385. In the absence of evidence that the Veteran currently has hearing loss disability, as defined by VA regulations, there can be no award of service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores do not represent "impaired hearing" as defined by regulation. Hensley v. Brown, 5 Vet. App. 155, 158 (1993) (citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992)). Consequently, service connection for hearing loss is not warranted. ORDER Service connection for left ear hearing loss is denied. REMAND Headaches The Veteran is seeking service connection for headaches, to include as due to an undiagnosed illness caused by his Persian Gulf Service. A September 2010 VA examiner found that the Veteran's chronic mixed headache syndrome was less likely as not related to his military service, noting that the Veteran was not treated for this condition in service. In his June 2011 addendum, the September 2010 VA examiner specifically clarified that the diagnosis of mixed headache syndrome is not an undiagnosed illness, but rather chronic tension headaches with migraine features. While the opinion found that there is a diagnosis that accounts for the Veteran's complained-of symptoms, suggesting that service connection due to undiagnosed illness is not warranted under 38 C.F.R. § 3.317, the rationale for the opinion regarding the alternate theory of direct service connection is insufficient. While it is true that the record does not show in-service treatment for this condition, the examiner did not address the Veteran's contention that his headaches were related to his exposure to fumes and chemicals from burning oil wells during his service in the Persian Gulf. (Service connection does not require in-service treatment for a claimed condition. Instead, 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. 38 C.F.R. § 3.303(d).) Therefore an addendum opinion is necessary. Stomach Disorder The September 2010 VA examination specifically found that the Veteran's symptoms were insufficient to satisfy the criteria for a diagnosis of irritable bowel syndrome under the "Rome" criteria, but no alternate diagnosis was provided. The examiner fount that it was less likely as not that the Veteran's IBS was related to his military service and again relied solely on the lack of in-service treatment for this condition. Again, this rationale is insufficient and an addendum opinion is necessary. Left Ankle and Left Achilles Tendon The Veteran reported that he injured his left ankle while on guard duty during a weekend drill with the Kentucky National Guard in April 1995 or May 1995. See July 2010 statement. VA treatment records include a left ankle x-ray performed in May 1995, which shows syndesmosis between the tibia and fibula and treatment for a rupture Achilles tendon. At his October 2007 RO hearing, the Veteran stated that he injured his ankle during a National Guard drill weekend in October, by stepping out of the vehicle and tweaking it. See also March 2010 Board hearing transcript. He stated that he did not seek treatment until two days later and no Line-of-Duty determination was made. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (IDT). 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. According to the appellant's Army National Guard Current Annual Statement provided a Military Membership Status Identifier of "B1" between July 1994 and July 1995, with no active duty during that period and 37 days of IDT. ("B1" denotes Army National Guard Unit Membership.) The current evidence of record, however, does not further clarify the Veteran's specific dates of military activity. This information is necessary to determine whether the Veteran's alleged injury occurred during IDT. Moreover, this was the express goal of the June 2010 remand, which instructed the agency of original jurisdiction (AOJ) to attempt to obtain records relating to the Veteran's Army National Guard service to verify his periods of ACDUTRA and IDT. These instructions noted that records solely showing the accumulation of retirement points were insufficient for purposes of deciding the Veteran's claim. Nevertheless, this is the only type of record that has been associated with the claims folder. As the record contains VA treatment for a left ankle condition and left Achilles tendon rupture in the claimed time frame, it is imperative that the record reflect whether the Veteran was indeed serving on IDT at the time of injury. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. In such situations, the Board must again remand the case for compliance with the remand orders. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate federal or state agencies to obtain service records related to the Veteran's National Guard service. These records should show the exact dates of his periods of inactive duty training (IDT). Specifically, the dates of the Veteran's drill weekends in April 1995 and May 1995. 2. Thereafter, refer the Veteran's claims folder to the September 2010 examiner or, if he is unavailable or unable, to other suitably qualified VA examiner(s) for the purpose of obtaining an addendum opinion. Specifically, the VA examiner should answer the following questions: a. Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current headaches are attributable to his military service, to include exposure to fumes and chemicals from burning oil wells during his service in the Persian Gulf? b. Do the Veteran's complained-of gastrointestinal symptoms satisfy the diagnostic criteria for any gastrointestinal condition? c. If yes, is it at least as likely as not (i.e., probability of 50 percent or greater) that any current gastrointestinal condition is attributable to the Veteran's military service, to include his exposure to fumes and chemicals from burning oil wells during his service in the Persian Gulf? The examiner should provide reasons for the opinion(s). The reasons for the opinion(s) should include consideration of the Veteran's reports. The medical reasons for accepting or rejecting the Veteran's statements should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner, to include further examination if necessary, be undertaken so that a definite opinion can be obtained. 3. Thereafter readjudicate the claims in light of any additional evidence obtained. If a benefit sought is not granted, issue a supplemental statement of the case and give the Veteran and his representative opportunity to respond before the record is returned 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 case 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs