Citation Nr: 1334944	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  10-05 376	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for a right knee disability.

3.  Entitlement to service connection for a left knee disability.

4.  Entitlement to service connection for chronic bronchitis.


REPRESENTATION

Appellant represented by:	Marine Corps League


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Fagan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1988 to March 1989, from November 1990 to May 1991, and from June 2004 to June 2005.  His final period of service included combat service in Iraq, and his decorations include the Purple Heart Medal and two Combat Action Ribbons.

This appeal to the Board of Veterans' Appeals (Board) is from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  In December 2011 the Veteran provided testimony at a videoconference hearing before the undersigned; a transcript of that hearing is of record.

The Board remanded this appeal in November 2012 for additional development.  The requested development has been completed, and the appeal is properly before the Board for appellate consideration.

The issue of entitlement to a compensable rating for left ear hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  The Board previously referred the issue to the AOJ for appropriate action.  As it does not appear that any action has yet been taken on the claim, it is again referred to the AOJ for appropriate action.

The issue of entitlement to service connection for chronic bronchitis 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 Veteran does not have a right ear hearing disability for VA purposes.


CONCLUSION OF LAW

Service connection for right ear hearing loss is not warranted.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This 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).  In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this 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.  Id. at 486. 

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  That letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date, consistent with the Dingess requirements.  The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content, as to all claims.  

VA also has a duty to assist a Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  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 claims file contains service treatment and VA treatment records.  The Veteran had VA examinations in May 2008 and December 2012.  Findings from the examination reports are adequate for the purposes of deciding the claims on appeal.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims and no further assistance to develop evidence is required.

The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim.  The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for service connection.  The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims.  This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service.  Accordingly, the Veteran is not shown to be prejudiced on this basis. 

Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

II.  Service Connection

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 

Service connection will also be presumed for certain chronic diseases, including organic diseases of the nervous system, i.e. sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from service.  See 38 C.F.R. §§ 3.307, 3.309 (2012).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
The threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually has the disability for which service connection is sought, specifically a right ear hearing loss disability.  In the absence of proof of a present disability, there is no valid claim (of service connection).  See Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).
The Veteran contends that he has right ear hearing loss that was incurred in service.  The Board notes that service connection is in effect for left ear hearing loss.

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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above 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 (2012).  See also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes).  The Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley  v. Brown, 5 Vet. App. 155, 159 (1993).

VA and service treatment records show that the Veteran complained of hearing loss in April 2005, while on active duty.  The service treatment records, however, are negative for clinical findings of a right ear hearing loss disability consistent with 38 C.F.R. § 3.385.  Specifically, audiological evaluation in April 2005, and audiological evaluation in April 2006 conducted in conjunction with the Veteran's enlistment in the Marine Corps Reserves, did not show a right ear hearing disability for VA purposes.

Post-service VA treatment records do not reflect audiometric findings that establish a right ear hearing loss disability consistent with 38 C.F.R. § 3.385.  In this regard, they are negative for treatment for right ear hearing loss. 

The Veteran was afforded a VA audiological examination in May 2008 in connection with his current claim.  Testing showed right ear pure tone thresholds to be as follows:

                                                               HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
10
20
20

Speech recognition score using the Maryland CNC was 100 percent for the right ear.  The examiner diagnosed normal hearing in the right ear.

The Veteran was afforded a second VA audiological examination in December 2012.  At that time, right ear pure tone thresholds were as follows:

                                                               HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
10
10
15

Speech recognition score using the Maryland CNC was again 100 percent for the right ear.  The examiner diagnosed right ear high frequency sensorineural hearing loss at frequencies of 6000 Hertz of higher.  Significantly, however, pure tone thresholds from 1000 Hertz to 4000 Hertz reflected right ear hearing acuity within normal limits for VA purposes.  38 C.F.R. § 3.385.

Based on the Board's review of the evidence, service connection for a right ear hearing loss disability is not warranted.  Although the Veteran complained of hearing loss during a period of active service, none of the reported thresholds of record during service met the regulatory requirements for establishing a right ear hearing loss "disability," according to VA regulations set forth at 38 C.F.R. § 3.385.  In other words, the Veteran is not shown to have had a right ear hearing loss disability for VA compensation purposes in service.

Nevertheless, the Veteran may still establish service connection for a current right ear hearing disability by submitting evidence that a current right ear hearing loss disability is causally related to service.  See Hensley  v. Brown, 5 Vet. App. 155, 160 (1993).  Here, there is no evidence of a current right ear hearing loss disability for VA purposes.  The May 2008 and December 2012 VA audiologic examination results do not reflect a current right ear hearing loss disability as defined by 38 C.F.R. § 3.385, as right ear auditory thresholds were not 26 decibels or more in at least three of the frequencies, and the right ear speech recognition score was 100 percent.  There are no other auditory findings sufficient to establish the same and the Veteran is not competent to show that he has a hearing loss disability pursuant to 38 C.F.R. § 3.385 . Thus, notwithstanding the Veteran's assertions that he has a current right ear hearing loss disability, the objective audiometric evidence that is available reflects that he does not have a current hearing loss disability for VA purposes.  See Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  In the absence of proof of present disability there can be no valid claim.  Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection for a right ear hearing loss disability is denied.


ORDER

Service connection for right ear hearing loss is denied.


REMAND

The Veteran asserts that he suffers from a respiratory disorder, specifically chronic bronchitis, that is related to service, to include as a result of environmental exposures while serving during Operation Desert Storm.  He further contends that he suffers from current right and left knee disabilities that were incurred in service.  He has specifically reported injuring his knees in IED incidents.

Pertaining to the Veteran's claimed bronchitis, service treatment records show that in July 1988, prior to entrance onto active duty, he reported shortness of breath attributed to his smoking history.  During an April 2006 reserve examination, the Veteran reported a history of a chronic cough/cough at night, but denied shortness of breath and indicated he no longer had the cough.  He further reported a history of smoking, but had quit and was reformed.

The Board notes in cases such as this one where the claim was filed after June 9, 1998, VA is prohibited from granting service connection for disability or death due to disease or injury attributable to the use of tobacco products during a veteran's active service.  38 U.S.C.A. § 1103(a) (West 2002); 38 C.F.R. § 3.300(a) (2012).  Because the Veteran's claim was filed after June 9, 1998, service connection will be warranted only if any respiratory disorder found had its initial onset during service or is otherwise related to his active service.  38 U.S.C.A. § 1103(b) (West 2002); 38 C.F.R. § 3.300(b) (2012).

Post-service treatment records show treatment for sleep apnea but are essentially negative for complaints or clinical findings related to any respiratory disorder.

The Veteran was afforded a VA respiratory examination in December 2012.  The examiner noted that the only respiratory diagnosis shown in the record was sleep apnea, for which the Veteran was already service-connected.  However, it is unclear from the December 2012 examination report whether the Veteran was fully evaluated for a respiratory disorder.  The examination report contains no discussion of any claimed symptoms or findings from a physical examination, normal or otherwise.  Nor does it appear that any diagnostic testing was performed.  Accordingly, the Board finds the December 2012 VA examination to be inadequate as to the existence of any current respiratory disorder, and that additional examination is necessary.  VA has a duty to ensure that any examination it provides is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  While the Board regrets the additional delay in this case, this matter must be returned to the RO to secure an adequate VA examination.

The Board also finds that remand of the Veteran's knee service claims is necessary for an adequate examination.  The Veteran was afforded a VA examination in December 2012, during which the VA examiner declined to diagnose any right or left knee disability.  However, diagnostic imaging performed in conjunction with that examination appears to contradict the VA examiner's conclusions.  In this regard, the notation on the imaging report of "no significant degenerative changes" suggests the presence of at least some degree of degenerative changes.  Given the seemingly contradictory evidence contained in the December 2012 VA examination report, the Board finds that remand is necessary for further examination to determine whether the Veteran has degenerative joint disease in his knees.  The Board points out that the Veteran competently testified in December 2011 that he has been diagnosed with arthritis in his right knee.

Additionally, the Board notes that the Veteran served in the Persian Gulf and is entitled to consideration of his respiratory and knee disorders as due to an undiagnosed illness or a chronic multi-symptom illness.  The Board notes that under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran for disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness.  Pursuant to the regulation, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  38 C.F.R. § 3.317(a)(1).  To date, the Veteran's claims have not been considered under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.  In light of the foregoing, the Board finds that the RO must provide the Veteran with appropriate notice of the evidence needed establish service connection under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.

Finally, it appears that there may be outstanding treatment records.  During his December 2011 videoconference hearing, the Veteran reported recent private treatment for bronchitis at Celebration Health Hospital in Florida.  He also testified as to past treatment for his knees and for bronchitis, including prescriptions for inhalers that occurred soon after his return from Desert Storm.  In light of the Veteran's testimony, the Board finds that further efforts should be made to obtain any potentially relevant private treatment records.

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the criteria required for a claim based on Persian Gulf service under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.

2.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or who were contemporaneously informed of his in-service and post-service respiratory and knee symptoms and/or diagnoses; and medical statements in support of his claims, including from his medical care provider(s). 

3.  Contact the Veteran and request him to identify all sources of respiratory and knee treatment, hospitalization and examination from any private physician(s) and facility(ies).  Thereafter, the RO should undertake appropriate efforts to obtain any indicated records, including records from Celebration Health Hospital in Florida dated around October 2011, and records from Dr. Stabler in Concord, Ohio, dated after April 1991.  The RO must make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile.  See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012).  All development efforts should be associated with the claims file, to include obtaining notation that no additional records are available on the Virtual VA system if VA treatment records are identified.

4.  Then schedule the Veteran for an appropriate VA examination(s) to determine the nature, onset, and etiology of any respiratory disorder, other than sleep apnea, and knee disabilities found to be present.  The claims folder should be made available to, and reviewed by the examiner, with such review noted in the provided examination report.  The examiner should record the full history of the condition, as appropriate, including the Veteran's account of symptomatology. 

The examiner should also be advised that the Veteran is competent to report symptoms and injuries, his history, and any continuity of symptoms, and that such statements must be considered in formulating the necessary opinions.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).

The examiner must state whether the Veteran's respiratory or knee symptoms are attributable to a known clinical diagnosis.  

The examiner should also advance an opinion as to whether it is at least as likely as not that any respiratory or knee disorder had its onset during active service; or, is causally related to the Veteran's service; or, was manifested within one year of discharge from service.

The examination report must reflect the examiner's consideration and analysis of both the medical and lay evidence of record.  All necessary testing should be completed with the relevant findings reported in detail.  

The examiner must provide a rationale for any and all opinions expressed, which should be set forth in a legible report.

5.  Then, readjudicate the Veteran's service connection claims, to include consideration of 38 U.S.C.A. § 1117  and 38 C.F.R. § 3.317.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC).  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or 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).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs