Citation Nr: 1338180	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  09-08 743	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to service connection for bilateral Achilles tendonitis. 

2. Entitlement to an initial compensable rating for right ear hearing loss. 


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant





ATTORNEY FOR THE BOARD

L. McCurdy, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1968 to September 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California which denied service connection for bilateral Achilles tendonitis and granted the Veteran service connection and a 0 percent initial evaluation for right ear hearing loss.  This case was later transferred to the jurisdiction of the Los Angeles, California RO. The Veteran now appeals the denial and the initial evaluation assigned for the service-connected right ear hearing loss. 

In July 2013, the Veteran and his representative appeared at the RO to present oral testimony in support of his claim before the undersigned traveling Veterans Law Judge.  A transcript of this hearing has been obtained and associated with the claims file for the Board's review and consideration.


FINDINGS OF FACT

1. The Veteran's bilateral Achilles tendonitis is due to injuries of the ankle that are consistent with the physical hardships of combat service.

2. Onset of symptoms associated with bilateral Achilles tendonitis during service and chronicity of these symptoms thereafter have been established by the competent and credible historical statements presented by the Veteran.




3. The Veteran's bilateral Achilles tendonitis had its onset during active military service.

4. The Veteran has Level I hearing in his service-connected right ear and Level I hearing in his nonservice-connected left ear.


CONCLUSIONS OF LAW

1. Bilateral Achilles tendonitis was incurred in active duty.  38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (2013).

2. The criteria for a compensable evaluation for right ear hearing loss disability are not met.  38 U.S.C.A. § 1155 (West 2012); 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

As will be further discussed below, the Veteran's claim of entitlement to service connection for bilateral Achilles tendonitis is being granted in full.  Therefore, the Board finds that any error related to VA's duties to notify and assist under the Veterans Claims Assistance of Act of 2000 (VCAA) ( Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012)) with regard to this claim is rendered moot by this fully favorable decision.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006).  Thus, there is no need to engage in any analysis with respect to whether the requirements of the VCAA and VA's duties to notify and assist have been satisfied concerning service connection for bilateral Achilles tendonitis.

With regards to the right ear hearing loss disability claim, 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.
VA's General Counsel has clarified that no additional VCAA notice is required in this circumstance concerning a "downstream" issue, such as the rating or effective date assigned for a service-connected disability and that a Court decision suggesting otherwise is not binding precedent.  VAOPGCPREC 8-2003.  The filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(3).  Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability-rating and/or earlier-effective-date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a statement of the case if the disagreement concerning the downstream issue is not resolved.  Since the RO issued a statement of the case in February 2009 addressing the downstream initial rating claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher rating, no further notice is required.  See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003).

The Board also notes that in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009), the United States Court of Appeals for Veterans Claims (Court) clarified VA's notice obligations in increased rating claims.  As the claim for an initial compensable rating for the service-connected migraine headaches stems from the grant of initial compensation benefits, as opposed to an increased rating claim, Vazquez-Flores is inapplicable to this claim.  Id.



VA also has a duty to assist the Veteran in the development of his initial rating claim.  This duty includes assisting him in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159 (2013).  The RO associated the Veteran's service treatment records, and VA and private treatment records with the claims files.  No outstanding evidence has been identified.

The Veteran was afforded a VA-contracted examination in connection with his right ear hearing disability claim in March 2007. To that end, when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds the above examination report to be a thorough and adequate basis upon which to decide the Veteran's claim.  The VA examiner personally interviewed and examined the Veteran, to include audiological testing, elicited a history from him, and provided the information necessary to evaluate his service-connected bilateral hearing loss under the applicable rating criteria.  Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim.  

The Board notes that the Veteran's last audiological examination of record is now six years old.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  VAOPGCPREC 11-95.  Notably, consideration has been given to the Veteran's statement during the July 2013 travel board hearing that his hearing loss is "probably about the same" as it was in 2007.  The Veteran has made no statement regarding a worsening of his disability and there is no objective evidence indicating that there has been a material change in the severity of his right ear hearing loss disability since the VA-contracted examination in March 2007.

In regard to the duty to assist in conjunction with the Board hearing, the Board has considered Bryant v. Shinseki, 23 Vet. App. 488 (2010).  In that case, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation: (1) explain the issues and (2) suggest the submission of evidence that may have been overlooked.  Here, during the Board hearing, the VLJ identified the issues on appeal, asked questions and elicited testimony in order to substantiate the claims, and accepted testimony and medical evidence on the matter of nexus.  The VLJ inquired as to the existence of outstanding medical evidence.  As was noted above, the Veteran was assisted at the hearing by her representative.  The hearing focused on the elements necessary to substantiate the claims and the Board finds substantial compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to the claim.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the initial rating 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).

Service Connection for Bilateral Tendonitis

Service connection is warranted when the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2013).  Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

The Board notes that the Veteran's DD 214 indicates that he was awarded the Vietnamese Service Medal with two stars, the Vietnamese Campaign Medal, the Combat Action Ribbon, and the Bronze Star with the combat V device.  Each of these awards is indicative of combat service.  38 U.S.C.A, § 1154(b) provides that where a veteran has "engaged in combat with the enemy in active service. . . the Secretary [of VA] shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation."  See also 38 C.F.R. § 3.304(d) (2012) (implementing regulation for section 1154(b), stating that "[s]atisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances. . . of such service even though there is no official record of such incurrence or aggravation.").

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102 (2013).

The Veteran was afforded a VA examination in August 2012 regarding this claim.  The Veteran described "difficulties with prolonged standing and walking" and said the symptoms began in October 1968.  The examiner diagnosed the Veteran with bilateral Achilles tendonitis.  The Veteran told the examiner that the condition "began while in the military" as "he experienced significant pain in the ankles due to general wear and tear" and "the condition has worsened over the years."  The examiner found that the Veteran's bilateral Achilles tendonitis was less likely than not caused by an in-service injury.  The rationale was that there was only a single incident noted in service which is "insufficient to demonstrate either the severity or chronicity of the condition that could reasonably be thought to persist in a chronic manner to the day of this examination."  His conclusion was essentially based on an "absence of documentary evidence" from service. 

The Veteran's claims file includes his service medical records showing treatment on several occasions for tendonitis in 1968.  In October 1968, the Veteran was treated for tendonitis, during which the examiner found "crepitation and tenderness" in the left Achilles tendon.  A few days later, the Veteran returned with a "retorn" tendon, experiencing similar crepitation and tenderness.  In November 1968, the Veteran was treated for "pain [in] both Achilles tendons and [a] sprained right ankle."  The examiner stated that the Veteran "has a case of persistent tendonitis."  In May 1969, the Veteran was treated for "constant pain to right calf muscle" that the examiner described as a "probable shin splint."   

In a July 2008 letter, the Veteran's private orthopedic surgeon explained that the Veteran's "pain extends from the Achilles region to the inferior heel, constant at some level and increasing during the course of the day."  This physician found that the Veteran "has persistent symptoms of Achilles tend[o]nitis which, per the information provided by [the Veteran], is evidence of persistent, chronic disability from a service-connected injury to the bilateral Achilles tendons."  

The Veteran presented statements indicating onset of bilateral Achilles tendonitis during service.  It is significant that in cases involving disabilities related to combat, VA must presume lay evidence that describes the in-service disease or injury is credible so long as it is "consistent with the circumstance, conditions, or hardships of such service, notwithstanding the fact that there is no official record."  38 U.S.C. § 1154(b).  In this regard, at his July 2013 hearing before the Board, the Veteran stated that he did not seek medical treatment for his bilateral Achilles tendonitis within a year of separation from service because of "the military culture [he] was in."  He stated that "it's just not in [his] nature" to complain "until things get to the point that [he] find[s] it...difficult to just function."  He also said that he "was a Marine Corps officer and we never went to sick bay unless you had severe problems."  The Veteran is competent to report his perceived ankle symptoms in service.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  In conjunction with the Veteran's statement to the VA examiner that "his ankles hurt throughout his military career," the Board finds his statements to be credible for purposes of establishing onset of bilateral Achilles tendonitis symptoms in service and chronicity of these symptoms to the present day.  

In view of the foregoing discussion, the Board finds that the Veteran's reported bilateral Achilles tendonitis during combat is consistent with the physical hardships he endured during combat service as a Marine Corps officer.  The Board further finds that the Veteran's service medical records contain objective documentation of treatment for recurring tendonitis, and that his statements are both competent and credible for demonstrating onset of tendonitis symptoms in service with continuity thereafter to the present day, and which are sufficient to establish a nexus with his current medical diagnosis of bilateral Achilles tendonitis.  Therefore, resolving all doubt in the Veteran's favor, the Board will allow his appeal and grant service connection for bilateral Achilles tendonitis.  38 U.S.C.A. § 5107(b) (West 2012); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Compensable Rating for Right Ear Hearing Loss Disability

The Veteran argues that his right ear hearing loss warrants a higher, compensable disability rating as he has difficulty communicating and listening in situations with background noise. 

Only independent medical evidence may be considered to support medical findings.  The Board is not free to substitute its own judgment for that of such an expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case (i.e., the objectively quantified severity of his right ear hearing loss at specific frequencies) falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Consequently, his contentions alone regarding the perceived severity of his hearing loss cannot constitute competent medical evidence for purposes of objectively rating his level of impairment.  38 C.F.R. § 3.159(a)(1) (2012).  The Board notes in this regard that the determination of the level of hearing loss for rating purposes is through audiometric testing using instrumentation that a layperson cannot approximate through his or her sensory perception.  The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (2013).  Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  The tests are conducted without the use of hearing aids.  See 38 C.F.R. § 4.85 (2013).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85 (2013).  To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85(b) (2012).  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear.  38 C.F.R. § 4.85(e) (2013).

If pure tone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  38 C.F.R. § 4.86(a) (2013).

When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b) (2013).

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85(a) (2013).

On VA-contracted audiological evaluation in March 2007, the Veteran's pure tone thresholds, in decibels, were as follows: 


HERTZ

1000
2000
3000
4000
RIGHT
25
20
30
40
LEFT
35
20
20
30

Pure tone averages were 28.75 decibels for his right ear and 26.25 decibels for his left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear.  These audiological findings correspond to a Level I hearing in the right ear and Level I hearing in the left ear.  38 C.F.R. § 4.85, Table VI (2013).  Under Table VII, a designation of Level I hearing in the right ear and Level I hearing in the left ear yields a 0 percent evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).  As the Veteran's hearing thresholds are less than 55 decibels in each of the frequencies 1000, 2000, 3000, and 4000 Hertz in both ears, he does not meet the criteria for exceptional patterns in hearing impairment to be afforded consideration under 38 C.F.R. § 4.86(a).  Nor does either ear demonstrate the required pure tone thresholds for application of 38 C.F.R. § 4.86(b).  

The Board in no way discounts the difficulties that the Veteran experiences as a result of his right ear hearing loss.  However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results obtained on VA-authorized clinical examinations.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

The Board finds that the clinical evidence does not demonstrate right ear hearing loss to level of impairment greater than 0 percent on strict application of the rating schedule.

The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The evidence of record demonstrates that the Veteran's right ear hearing loss causes no significant effects in occupational functioning.  While it is conceded that his hearing loss disability can nevertheless impose a degree of interference with his occupational functioning, there is no objective evidence to suggest that the Veteran's right ear hearing loss disability is not adequately addressed by the regular rating schedule.  As was explained above, higher ratings were available but were not assignable in accordance with very specific criteria.  The level of impairment objectively demonstrated is contemplated by the rating criteria for a 0 percent evaluation.  The Board thus finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b) (2013).  Although the Veteran may have difficulty hearing spoken conversations because of his impaired hearing, the evidence does not reflect that the rating assigned for his service-connected hearing loss is inadequate.  Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  VAOPGCPREC 6-96.  See also, Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In finding that a compensable rating is not warranted, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A § 5107(b) (West 2012); 38 C.F.R. § 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  His claim for an evaluation in excess of 0 percent for right ear hearing loss is therefore denied.


ORDER

Service connection for bilateral Achilles tendonitis is granted. 

An initial compensable evaluation for service-connected right ear hearing loss is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs