Citation Nr: 1335728	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  09-31 424	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to an increased rating for residuals of a right wrist fracture, to include post-traumatic arthritis, currently rated at 10 percent.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Megan C. Kral, Associate Counsel 




INTRODUCTION

The Veteran served on active duty from August 1977 to August 1980. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

The appeal also originally included the issue of service connection for tinnitus, however, this benefit was granted by rating decision in December 2010 and is therefore no longer in appellate status.

The issues of service connection for back and shoulder pain as secondary to a right wrist disability have been raised by correspondence received in August 2008, August 2009 and January 2011.  These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The issue of an increased rating for a right wrist disability 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

No hearing loss disability has been present during the pendency of this appeal.  


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication.  An August 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  This letter also informed the Veteran of disability rating and effective date criteria.  The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate.

The Veteran's service treatment records (STRs) have been secured.  The Board notes that the Veteran has stated that he did not receive treatment for his claimed disability.  The RO arranged for a VA examination in October 2010.  The Board finds that the examination was adequate to allow proper adjudication of the issue on appeal.  The examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered a well supported opinion based on consideration of the full history of the disability.

The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

Legal Criteria

The issue before the Board involves a claim of entitlement to service connection for bilateral hearing loss.  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. §§ 1110, 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).  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).

To establish a claim of service connection, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases (such as organic diseases of the nervous system, including sensorineural hearing loss) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service.  38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a).  Other diseases initially diagnosed after service may also be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service.  38 C.F.R. § 3.303(d). 

Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 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.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Analysis 

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran claims he has hearing loss that resulted from noise trauma he sustained during his active duty service.  The Veteran's service treatment records are silent for complaints or findings of a hearing loss disability.  A July 1980 separation examination does not show a hearing loss disability as defined for VA purposes.  

There are no post-service treatment records evidencing a hearing loss disability, nor has the Veteran reported the existence of such evidence.  

The Veteran was afforded a VA audiological examination in October 2010.  The Veteran reported hearing difficulties, especially with phone conversations.  He reported that he did not seek treatment for any hearing disability.  He reported his military duties included helicopter repair and that he did not use hearing protection. He reported post-service use of power tools with hearing protection.  On examination, pure tone thresholds, in decibels, were as follows:  

	

HERTZ




500
1000
2000
3000
4000
RIGHT
20
20
25
25
25
LEFT
20
20
25
25
25

Speech recognition was 100 percent in the both ears.  The Maryland CNC speech recognition performance on both ears was excellent.  

Normal hearing bilaterally was diagnosed.  The examiner noted that both the subjective and objective factors supported the diagnosis of normal hearing.

There is no evidence that the Veteran has, or has had, a hearing loss disability by VA standards (defined in 38 C.F.R. § 3.385) at any point since service; which, as mentioned, is the first requirement of any service connection claim.  Therefore, as there is no current disability, there is no valid claim of service connection for such disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of the presently claimed disability, there can be no valid claim).  

For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss.  And inasmuch as the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in his favor, and this claim must be denied.  
See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 


ORDER

Entitlement to service connection for bilateral hearing loss disability is denied. 


REMAND

A review of the claims file reveals that the Veteran was most recently afforded a VA examination regarding his right wrist disability in October 2010, more than three years ago.  Since then the Veteran has reported that his disability has worsened, that it effects his ability to work, and has caused pain in his back and shoulders.  See letter from Veteran dated in January 2011.  In light of the length of the intervening period since the October 2010 examination and the apparent allegation of worsening, a contemporaneous examination to assess his right wrist is necessary.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

The Veteran has previously asserted that he does not receive treatment for his right wrist disability.  On remand, it should be determined if this is still accurate or whether the Veteran now receives, or has received treatment, for his right wrist disability.  If so, records of this treatment must be secured and associated with the claims file.  

Accordingly, the case is REMANDED for the following action:

1. The RO must ask the Veteran if he receives treatment for his right wrist disability.  If so, the Veteran is asked to identify all private providers of treatment he has received, and complete the necessary authorizations so that VA can obtain any identified private treatment records.  The RO should then secure for the record copies of the complete treatment records from the sources identified.  If any records sought are unavailable, the reason for the unavailability must be given (e.g., did not exist/were destroy).   

Additionally, the RO must determine if the Veteran receives, or has received, VA medical treatment.  If so, the RO must obtain copies of all relevant VA treatment records to associate with the Veteran's claims file.  

2. The RO should arrange for an orthopedic examination of the Veteran to ascertain the current severity of his right wrist disability.  His entire record must be reviewed by the examiner in conjunction with the examination.  Any indicated tests or studies (specifically including range of motion studies) should be completed.  The examiner should note whether there are further functional limitations due to pain, weakness, fatigue and/or incoordination.  

The examiner is also asked to comment as to what effects, if any, the Veteran's right wrist disability has on his employment.  

The examiner should provide a complete explanation for any conclusions drawn or opinions expressed. 

3. The RO should then review the record and readjudicate the claim.  If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The Veteran 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 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).




______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs