Citation Nr: 1339641	
Decision Date: 12/03/13    Archive Date: 12/18/13

DOCKET NO.  09-44 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss. 

2. Entitlement to service connection for recurrent tinnitus.

3. Entitlement to an initial evaluation in excess of 30 percent for an anxiety disorder.

4. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine.

5. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity.

6. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity.

7. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION

Appellant represented by:	Charles E. Stalnaker, Esq.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel


INTRODUCTION

The Veteran had active military service from November 1984 to January 1985 and from January 1986 to September 1994.

This case comes before the Board of Veterans' Appeals (Board) on appeal of March 2009 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Veteran testified before the Board at an August 2012 hearing conducted at the RO.  A transcript of the hearing is of record.

The Court has held that entitlement to TDIU is an element of all increased rating claims.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  In light of the Court's holding in Rice, as well as the Veteran's contentions that his service-connected disabilities renders him unemployable, the Board has amended the issues on appeal to include entitlement to TDIU as reflected above.

The issues of service connection for recurrent tinnitus; increased initial evaluations for an anxiety disorder, degenerative disc disease of the lumbar spine and radiculopathy of the bilateral lower extremities; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDING OF FACT

The Veteran has not been diagnosed with hearing loss of either ear for VA disability purposes at any point during the appeal period.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by active duty service.  38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA's duty to notify has been satisfied through notice letters provided to the Veteran in December 2008 and January 2009 that fully addressed all notice elements.  These letters informed the Veteran of what evidence was required to substantiate his claim for service connection, and of the Veteran's and VA's respective duties for obtaining evidence.  The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.

In light of the above, the Board finds that all required notice has been furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional notice letters.

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013).

Service treatment records are associated with claims file.  All post-service medical treatment records identified by the Veteran have also been obtained.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  The Veteran has been afforded two VA examinations for his claimed hearing loss.  See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2013); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002).  The Board finds these VA examinations adequate for the purposes of determining service connection, as they involved a review of the Veteran's pertinent medical history as well as a audiometric evaluation of the Veteran, and provide an adequate basis for the diagnosis rendered.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.



Analysis

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

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, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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 (2013).

The Veteran has been provided two VA audiological examinations at which he complained of difficulty hearing in many situations, especially with background noise.  


An a November 2009 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
5
20
LEFT
15
15
10
10
15

Speech audiometry revealed speech recognition ability of 96 percent bilaterally.

An August 2010 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
5
10
LEFT
15
10
10
10
10

Speech audiometry revealed speech recognition ability of 96 percent bilaterally.

The reports of the November 2009 and August 2010 VA examinations clearly show the Veteran does not suffer from hearing loss for VA disability purposes.  See 38 C.F.R. § 3.385.  The Veteran has identified no competent medical evidence indicating he has been diagnosed with hearing loss of either ear for VA purposes at any point during the pendency of the current claim.

The Board acknowledges that the Veteran himself has claimed that he suffers from bilateral hearing loss as a result of his active service.  However, while he is competent to report (1) symptoms observable to a layperson, e.g., decreased hearing ability; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  In this regard, the requirements of hearing loss per VA standards requires the administration of diagnostic testing.  Consequently, the Veteran's lay assertions of a medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection.  Lathan v. Brown, 7 Vet. App. 359, 365 (1995).

A key element for any grant of service connection is a finding of a current disability.  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The risk factor of in-service acoustic trauma is not germane in the absence of any resulting disability.

The preponderance of the evidence is against the claim of service connection for bilateral hearing loss; there is no doubt to be resolved.  Service connection for bilateral hearing loss is not warranted.


ORDER

Service connection for bilateral hearing loss is denied.


REMAND

The Veteran asserts service connection for recurrent tinnitus, as well as increased initial evaluations for his service-connected anxiety disorder, degenerative disc disease of the lumbar spine and bilateral radiculopathy of the lower extremities.  For the reasons discussed below, additional development is required with respect to these claims.

With respect to his service connection claim, the Veteran was provided VA examinations in November 2009 and August 2010.  Other than the August 2010 VA examiner noting a relation between tinnitus and hearing loss (which is denied above), neither VA examiner provided an etiological opinion as to whether the Veteran's current tinnitus is related to the Veteran's active service, to include in-service acoustic trauma.

Once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion).  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence...is essential for a proper appellate decision").  As such, the Veteran must be provided a new VA examination to determine whether his current tinnitus is etiologically related to his active service.

With regards to the increased initial evaluation claims, the Veteran testified at the August 2012 Board hearing that each of these conditions have increased in severity since his last VA examinations.  Given these assertions, the Veteran must be provided new VA examinations to address the current severity of his service-connected disabilities.  See 38 C.F.R. § 3.159; see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination).

As a final note, the Board again observes that entitlement to TDIU is an element of all increased rating claims.  Rice, 22 Vet. App. at 453.  Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

In the instant case, the Veteran has asserted, and the record suggests, that he may be unemployable due to his service-connected disabilities.  However, the Board observes a medical opinion has not yet been obtained to determine whether the Veteran is unable to obtain or pursue substantially gainful employment due solely to his service-connected disabilities.  Friscia v. Brown, 7 Vet. App. 294 (1994).  As such, on remand, such these opinions should be obtained.

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran notice informing him of the information and evidence necessary to establish a claim of entitlement to a total disability evaluation based upon individual unemployability (TDIU).

2. Schedule the Veteran for a VA examination to address the nature and etiology of his recurrent tinnitus.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

Following a review of the record and examination of the Veteran, the examiner is requested to provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that any current tinnitus is etiologically related to the Veteran's period of active service, to include in-service acoustic trauma.

The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

3. Schedule the Veteran for a VA examination to address the nature and severity of his service-connected anxiety disorder.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

The examiner should identify the nature, frequency, and severity of all current manifestations of the Veteran's current service-connected psychiatric disability.  The examination report should include a full psychiatric diagnostic assessment including a Global Assessment of Functioning (GAF) score on Axis V and an explanation of the significance of the current levels of psychological, social, and occupational functioning which support the score.  The examiner should also specifically comment on the impact of the Veteran's anxiety disorder upon his social and industrial activities including his employability.

The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

4. Schedule the Veteran for a VA examination to address the nature and severity of his service-connected lumbar spine disability and bilateral radiculopathy of the lower extremities.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

Following a review of the record and examination of the Veteran, the examiner is requested to address the following:

a. Provide specific findings as to the range of motion of the lumbar spine.  Any pain during range of motion testing should be noted, and the examiner should accurately measure and report where any recorded pain begins and ends as well as the functional effect of such pain on the Veteran's range of motion.  The examiner should also note whether there is any objective evidence of weakness, excess fatigability, and/or incoordination associated with the Veteran's lumbar spine disability.  The examiner should also state whether there is any abnormality of the spine, including evidence of arthritis or ankylosis.

b. Document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician."

c. With regard to radiculopathy of the lower extremities, please identify the specific nerve(s) involved, together with the degree of paralysis caused by the disability and functional impact on the Veteran's daily activities.

d. Provide an opinion regarding the functional impact of the Veteran's lumbar spine disability and bilateral radiculopathy on his employability.

The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

5. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence.  If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case.  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. 2013).




______________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs