Citation Nr: 1339742 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 07-22 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a respiratory disorder, claimed as recurrent bronchitis and allergies. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for a right ankle disorder. 4. Entitlement to service connection for chronic urinary tract infections. 5. Entitlement to service connection for a bilateral wrist disorder, claimed as carpal tunnel syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1994 to August 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2011, the Board remanded the claims. The Veteran was afforded a January 2010 hearing before the undersigned Acting Veterans Law Judge at the RO and a copy of that hearing transcript has been associated with the claims file. The issue of entitlement to service connection for left ear hearing loss has been raised by the record, but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). See March 2006 claim. Thus, the Board does not have jurisdiction over this issue, and it is again referred to the AOJ for appropriate action. The issues of entitlement to service connection for a right ankle disorder, chronic urinary tract infections and a bilateral wrist disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's respiratory disorder, currently diagnosed as bronchitis/asthma, is etiologically related to her active duty military service. 2. Right ear hearing loss pre-existed the Veteran's period of active duty and was not aggravated by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder are met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 1101, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist In June 2006, prior to the August 2006 rating decision, the RO provided the appellant with adequate notice of information or evidence needed to substantiate each of the five elements of the claim for service connection for right ear hearing loss. Accordingly, the duty to notify is satisfied. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b). VA also has done everything reasonably possible to assist the Veteran in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records plus identified and available post-service records have been secured. As noted by the Veteran's representative in a February 2013 brief, some records from the Naval Hospital at Corpus Christi appear to be absent from the claims file as the Veteran reported treatment at that facility through 2001, but the file only contains records dating through 1999. However, the RO attempted to retrieve all records from this facility, issued a June 2007 formal finding of unavailability as to post-1999 records, notified the Veteran of the unavailability, and requested that she submit any such records in her possession. The Veteran did not respond to that request and neither the Veteran nor her representative has identified any other outstanding evidence that is relevant to the issues decided herein. In January 2010, the Veteran set forth her contentions at a hearing before the undersigned. The record reflects that the undersigned identified the issues to be discussed at the hearing. Further, testimony focused on the elements necessary to substantiate the claim for service connection and the undersigned, by inquiring as to the availability of the Veteran's VA treatment records, sought to identify any further development that was required to help substantiate service connection. These actions satisfied the duties a Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The case was remanded in March 2011 for an examination addressing the etiology of the claimed right ear hearing loss, which was obtained in April 2011. The Board finds that the resultant examination is adequate, as it is predicated on review of the complete record, including service treatment records and the contentions of the Veteran, and provides a complete rationale for the opinion stated. Thus, there has been substantial compliance with the March 2011 remand directives, and the duty to assist has also been satisfied. II. Service Connection for a Respiratory Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The Veteran's service treatment records reflect that she was seen on multiple occasions for treatment of bronchitis, upper respiratory infections, pharyngitis, and sinusitis. A December 1997 service treatment note also reflects that she began to experience allergy symptoms while she was on active duty and was prescribed medication and advised to discontinue use of a feather pillow. The report of a March 2011 VA respiratory disorders examination reflects that the examiner reviewed the Veteran's service treatment records, post-service treatment history, and lay statements as to respiratory symptoms. Based on that medical history as well as examination of the Veteran, the examiner determined that she currently experienced asthma. Noting the history of recurrent diagnoses of bronchitis, the examiner opined that the Veteran had "asthma/bronchitis" that was as least as likely as not caused by, or a result of, an in-service respiratory disorder. As there is no competent medical opinion to the contrary, service connection for a respiratory disorder is warranted. II. Service Connection for Right Ear Hearing Loss A Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. 1153; 38 C.F.R. 3.306. The Veteran's service treatment records include the following audiometric results as recorded in decibels (dB): January 1994 (enlistment into active duty) Hertz 500 1000 2000 3000 4000 Right Ear 0 10 0 15 50 March 1994 (entrance into hearing conservation program) Hertz 500 1000 2000 3000 4000 Right Ear 0 10 5 15 45 March 1998 (consultation) Hertz 500 1000 2000 3000 4000 Right Ear 0 5 0 20 45 April 1998 (consultation) Hertz 500 1000 2000 3000 4000 Right Ear 5 5 0 20 45 July 7, 1998 (separation from active duty) Hertz 500 1000 2000 3000 4000 Right Ear 15 15 5 35 45 July 8, 1998 (re-test following separation examination) Hertz 500 1000 2000 3000 4000 Right Ear 0 0 -5 25 40 The above-cited January 1994 enlistment examination reflects a pre-existing right ear hearing loss disability for VA purposes, and the April 2011 VA examiner has confirmed the same. See 38 C.F.R. § 3.385. Thus, a right ear hearing loss is "noted" at entrance to service, and the Veteran is not entitled to the presumption of soundness. 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Furthermore, the most probative evidence of record establishes that pre-existing right ear hearing loss was not aggravated during service. Specifically, the April 2011 VA examiner opined that that there was "no evidence [of] aggravation during military service." Although also observing some differences among the military audiograms, the examiner explained that a five to 10 decibel test/re-test variability was normal. In specific regard to right ear measurements at 3000 hertz recorded at the time of the Veteran's July 7, 1998 separation examination, which were elevated beyond that range of normal variability in comparison to prior measurements, the examiner reasoned that those results were not reflective of an increase in right ear hearing loss during service, as they were not duplicated on re-test the following day. There is no competent medical evidence to the contrary. In this regard, although the Veteran is competent to provide opinions on some medical issues, she is not competent to opine on whether or not right ear hearing loss was aggravated during service, as this matter is beyond the realm of common medical knowledge. In any event, her assertions are outweighed by the in-service audiometric findings and VA examiner's opinion, which contains a complete rational that accounts for all relevant data. In conclusion, aggravation of the Veteran's pre-existing right ear hearing loss is not demonstrated, and the claim must be denied. 38 U.S.C.A. 1153; 38 C.F.R. 3.306. ORDER Service connection for a respiratory disorder, diagnosed as asthma and bronchitis, is granted. Service connection for right ear hearing loss is denied. REMAND The remaining issues are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated since December 29, 2009, to specifically include any records of tests ordered in conjunction with the March 2011 VA examinations (which note that "repeat emg/ncv has been requested" regarding the bilateral wrists, and "right ankle x-ray pending"). 2. Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file. The results of any attempts to obtain any identified records, whether successful or unsuccessful, should be documented in the claims file, and the Veteran should be informed of any negative results in accordance with 38 C.F.R. § 3.159(e). 3. After all outstanding records have been associated with the claims file, the file should be returned to the March 2011 VA examiner for review of the entire claims file, to include a copy of this Remand. If warranted, based on the newly associated evidence, the examiner should provide addendum opinions as to the nature and etiology of any chronic urinary tract infections, right ankle disability, and bilateral wrist disability. If the March 2011 VA examiner is not available, the claims file should be forwarded to a similarly qualified examiner to provide any necessary opinions. 4. Thereafter, readjudicate the issues on appeal. If the decisions remain adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. 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). These claims 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). ______________________________________________ Sonnet Gorham Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs