Citation Nr: 1333406 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-31 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for gout, to include as secondary to diabetes mellitus and diabetic nephropathy. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Guam Office of Veterans Affairs ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from January 2005 and June 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In September 2010 and July 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In September 2013, the Veteran submitted a disagreement with a May 2012 rating decision that denied entitlement to service connection for right upper and left upper extremity peripheral neuropathy. Although the statement of disagreement reflects that it was signed in October 2012, the actual date of receipt was September 2013, over one year after the May 2012 rating decision. Therefore, the Board construes the Veteran's submission as claims to reopen the previously denied claims for service connection for right and left upper extremity peripheral neuropathy. The Veteran also asserted he was entitled to an increased rating for his service-connected diabetes. As no action has been taken by the RO on these claims, they are REFERRED for appropriate action. FINDINGS OF FACT 1. Gout did not have its onset in service and is not shown to be caused or aggravated by a service-connected disability. 2. Bilateral hearing loss did not have its onset in service or within one year of the Veteran's discharge from service and is not shown to be a result of disease, event, or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for gout have not been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1116, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.310 (2013). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Stegall Considerations This case was remanded by the Board in September 2010 and July 2013. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the September 2010 remand was to ensure that all VCAA requirements were met, to request that the Veteran identify pertinent employment and private treatment records, to obtain any outstanding VA treatment records, and to schedule VA examinations. The July 2013 remand was issued to allow the RO opportunity to associate a private audiological record with the claims file and to schedule a VA examination for the Veteran's gout. A review of the post-remand record shows that VCAA notices were sent that asked the Veteran to identify and authorize release to VA any outstanding treatment records, that additional VA treatment records were added to the claims file, and that VA examinations were performed in August 2012, September 2012, March 2013, and July 2013. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the prior remands, and that the Board may now proceed with adjudication of the claims. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. . VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in September 2004 for the gout claim and in April 2007 for the hearing loss claim. Both letters were issued prior to the initial unfavorable adjudications of the claims, in January 2005 and June 2007, respectively. These notices informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claims, and of his and VA's obligations in providing such evidence for consideration. The Board notes that the Veteran was not advised of the evidence necessary to substantiate disability ratings and effective dates until March 2006 and then again in the April 2007 letter. The Board acknowledges the defective timing of this notice with respect to the January 2005 rating decision, but finds that no prejudice to the Veteran has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In this regard, the Board observes that a statement of the case (SOC) and supplemental SOC (SSOC) constitute "readjudication decisions" that comply with all due process requirements if preceded by adequate VCAA notice See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). As a matter of law, providing the Veteran with VCAA-compliant notice prior to a readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication. See id., citing Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, subsequent to the letters sent in March 2006 and April 2007, the Veteran was provided with multiple SSOC. Therefore, any deficiency of timing of notice was rectified by subsequent readjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing him with VA examinations. The Veteran's VA treatment records and the reports of August 2012 and September 2012 fee-basis examinations and March 2013 and July 2013 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of the claims. The Board notes that one of the purposes of the July 2013 remand was to obtain a January 2007 private audiological evaluation. In a July 2013 letter, the Veteran was asked to provide a copy of the evaluation or to authorize VA to obtain it. No response was received from the Veteran. While VA is obligated to assist a claimant in the development of a claim, there is no duty on VA to prove the claim. As the Court stated in Wood v. Derwinski, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." 1 Vet. App. 190, 193, reconsidered, 1 Vet. App. 406 (1991); see also Wamhoff v. Brown, 8 Vet. App. 517 (1996). Therefore, the Board determines that further efforts to obtain the January 2007 private treatment record are not necessary. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's subjective complaints and history, and evaluated the Veteran. The examiners then provided opinions based on the evidence of record. There is nothing to suggest that any opinion is not sufficiently grounded in the facts of the case or that the examiner reached an arbitrary conclusion. To the extent the Board determines that one opinion carries more probative weight than another that analysis is presented below. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claims without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claims. III. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. Further, with chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (arthritis, hypertension, leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Each disorder for which the Veteran seeks service connection must be considered on the basis of the places, as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence; a veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a); see also 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). A veteran's lay statements may be sufficient evidence in any claim for service connection. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 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 (38 CFR part 4) 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(b); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that he suffers from gout that is a result of his service-connected diabetes mellitus. Therefore, he argues that service connection is warranted for this disability. Initially, the Board observes that the Veteran has a current diagnosis of gout, as demonstrated by VA and private treatment records and VA examinations. However, service treatment records are silent for any complaint, treatment, or diagnosis of gout. August 1968 service treatment records note complaints of left foot and leg pain and an old left ankle sprain. The diagnosis was recurrent mild sprain. A sprained left ankle and tender left foot were again noted in November 1968. X-rays at that time were within normal limits. No abnormalities were found at clinical examination at separation. There are conflicting opinions of record with respect to the etiology of the Veteran's gout. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996). The September 2012 examiner stated that the Veteran's gout is at least as likely as not aggravated by his military service. However, the rationale for this opinion was that the medical community is aware of the association of chronic illness such as diabetes mellitus with development or aggravation of gout. The examiner also indicated that chemical imbalance, decreased circulation, and obesity are risk factors for diabetes mellitus and also result in a predisposition to gout. Further, the examiner noted that the incidence of gout in patients with diabetes mellitus is higher than in the general population, which also suggests a cause-and-effect relationship. The examiner also explicitly noted in the report that the Veteran's pre-induction and separation examinations were silent for gout. Thus, the examiner's opinion appears to actually be that the Veteran's gout was caused or aggravated by his service-connected diabetes mellitus. Even so, the Board notes that the examiner's opinion was based on factors that correlate the development of gout with diabetes mellitus. Specifically, the examiner indicated that gout and diabetes mellitus share risk factors and that gout is more likely to occur in people with diabetes mellitus. However, the examiner did not offer evidence from the record in explanation as to how this Veteran's gout is etiologically due to the Veteran's diabetes mellitus. In particular, the Board observes that the examiner did not address with any specificity the fact that the Veteran's gout pre-dated his diabetes mellitus and that his gout has been well-controlled for many years since the inception of the diabetes mellitus. For these reasons, the Board affords the September 2012 opinion less probative weight. In contrast, the March 2013 VA examiner opined that the Veteran's gout was not aggravated beyond the natural progression of the disease by the diabetes mellitus. In support of this opinion, the examiner noted that a history of gout was documented in 2001, prior to the diagnosis of diabetes mellitus. The examiner then observed that the Veteran has been treated for gout flares since the inception of his diabetes mellitus, but that the medications have remained stable. The examiner also noted that the Veteran's gout had remained stable for the last several years without flares. In light of these facts, the examiner opined that the Veteran's gout was less likely as not caused or aggravated by or proximately due to the Veteran's diabetes mellitus and diabetic nephropathy. As the examiner based the opinion on multiple facts in the record, the Board affords this opinion great probative value. However, on the question of direct service connection, the examiner only stated that since the gout was not present in service, it was less likely as not incurred in or caused by an in-service event, injury, or illness. No rationale was provided; thus, the opinion has no probative value. Therefore, the Board requested another VA opinion on the question of direct service connection. In July 2013, the VA examiner again opined that the Veteran's gout is less likely as not incurred in or caused by an in-service injury, event, or illness. He elaborated that the basis for the opinion was that, while the September 2012 VA examiner recorded a history of gout since the 1970s, the first documented reference to gout was a March 2001 treatment note that reported a history of gout and that a diagnosis of gout was not then made until 2009. The examiner noted that the medical literature shows that gout is usually characterized by recurrent attacks of acute inflammatory arthritis and is caused by elevated levels of uric acid in the blood. The examiner then observed that the Veteran had complaints of left foot, left ankle, and left leg pains, but that these symptoms were attributed to sprains and that the exams of those disorders were not typical presentations of gout. He also reported that there is no other documentation of any disorder that could resemble or cause gout. There is no competent and probative medical evidence of record that contradicts the VA opinions. In accordance with the above analysis, the Board determines that the Veteran's gout is less likely as not causally or etiologically due to his military service or to service-connected disability. The Board has considered the Veteran's statements as to the etiology of his gout, and to the extent his symptoms of gout are readily observable, he is competent to speak to their occurrence. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007) (holding that some disabilities are not capable of lay observation); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, determination of the cause of gout requires specialized medical knowledge. Therefore, the Veteran's statements that his gout is due to his diabetes mellitus are not competent evidence of causation. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the competent evidence does not associate the Veteran's gout with either his military service or service-connected disability, the preponderance of the evidence is against the Veteran's claim service connection. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and his service connection claim must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. Bilateral hearing loss The Veteran contends that he suffered hearing loss as a result of an explosion during his military service when his unit ran over a land mine during a training exercise. Therefore, he argues that service connection is warranted for his bilateral hearing loss. 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. The Court has held that service connection may be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss that first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran's service treatment records are negative for complaints, treatment, or diagnosis pertinent to hearing difficulty. However, post-service records demonstrate a diagnosis of bilateral hearing loss. Specifically, at the August 2012 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 40 65 60 LEFT 30 15 25 65 65 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. The Veteran was diagnosed as having sensorineural hearing loss in both ears. Therefore, the Board finds that the contemporary medical evidence demonstrates a current bilateral hearing loss as defined by 38 C.F.R. § 3.385. Initially, the Board notes that the first medical diagnosis of hearing loss in the record is that provided at a January 2007 audiogram, which was first noted in VA treatment notes. Thus, the record fails to reveal that bilateral hearing loss manifested to a compensable degree within one year of the Veteran's discharge in November 1969. As such, presumptive service connection is not warranted for bilateral hearing loss. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Chronic disabilities (to include sensorineural hearing loss) can be service-connected if there is continuity of symptomatology since service. 38 C.F.R. § 3.303, 3.309; see also Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Here, the evidence does not establish continuity of symptomatology. The first diagnosis of hearing loss was in 2007, almost 40 years after service. The Veteran has not asserted continuity of symptomatology. Therefore, there is no basis for service-connection for hearing loss based on continuity of symptomatology. With regard to direct service connection, the only nexus opinion of record is that of the August 2012 fee-basis examiner. This examiner noted the January 2007 audiogram, apparently performed at an associated clinic, and offered an etiological opinion as to the Veteran's hearing loss before and after that audiogram. The examiner observed that the Veteran reported a history of civilian occupational noise exposure from 1979 to 2003 and that the hearing loss found in January 2007 was most likely the result of that occupational noise exposure. The examiner based the opinion on the fact that the occupational noise exposure lasted for 24 years as opposed to the two years of military noise exposure the Veteran experienced. The examiner then noted that the Veteran's hearing loss was significantly worse in August 2012 than it had been in January 2007 and indicated that progressive hearing loss is not associated with noise exposure. Therefore, the examiner concluded that the worsening of the Veteran's hearing loss was the result of aging and not noise exposure in the military. No contradictory medical opinion has been received. Thus, the only evidence in support of the Veteran's claim that his bilateral hearing loss is due to his military noise exposure is his own statements. While the Veteran is competent to speak to facts capable of lay observation, i.e. perceived hearing loss, he does not have the requisite expertise to determine the etiology of the hearing loss. See Jandreau, 492 F.3d.; see also Washington, 19 Vet. App. Therefore, the Board concludes that the competent evidence does not establish that the Veteran's hearing loss is due to his military noise exposure. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, in the present case, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss. Therefore, his claim must be denied. ORDER Entitlement to service connection for gout, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for bilateral hearing loss is denied. _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs