Citation Nr: 1339746 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 08-00 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a knee injury. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran had active service from April 1962 to May 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The record reflects that the Veteran requested a Travel Board hearing, but in a correspondence received at the Board in July 2009, he cancelled the hearing request. In August 2011, the Veteran's representative submitted additional evidence along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. § 20.1304 (2013). This case was before the Board in September 2011 and was remanded for additional development. The Board notes the RO adjudicated the knee claim as service connection for a knee injury, without specifying right or left, effectively adjudicating both knees. In the September 2011 Board remand, the issue was recharacterized as "right knee disability" presumably because evidence suggested a prior right knee surgery. However, in a September 2011 written statement, the Veteran advised the RO that his knee injury was to his left, not right, knee. The issue has been returned to its original form on the title page so that appropriate consideration is given to the claim. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. The issue of entitlement to service connection for COPD 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. To the extent the Veteran initially claimed service connection for a right knee disability, such issue was withdrawn by his September 2011 statement. 2. There is no competent evidence indicating the Veteran suffers from a current left knee disability. 2. The most probative evidence indicates the Veteran does not suffer from a hearing loss disability that is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal concerning the issue of service connection for a right knee injury have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The criteria for the establishment of service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 3. The criteria for the establishment of service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn the issue of service connection for a right knee injury, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, that issue is dismissed. II. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). In this case, proper VCAA notice was provided in a May 2006 letter. The Veteran has not alleged any prejudice due to the timing or content of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA treatment records, private treatment records, and VA examination reports. This case was remanded by the Board in September 2011 for additional development, to include requesting additional information from the Veteran and providing VA examinations. The directives were completed as directed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the RO did not schedule a VA examination for the Veteran's claimed left knee disorder. However, as will be discussed fully below, there is no competent evidence of the claimed condition during service and no competent evidence of a current disability. Accordingly, a VA examination for the claimed left knee disability is not required. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Duenas v. Principi, 18 Vet. App. 512 (2004). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence, including a lay statement, and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). III. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Left Knee The Veteran contends that he injured his left knee jumping off of the nose of a C-130 aircraft that had made a crash landing in January 1966. The Veteran's service treatment records are silent for complaints, treatment, or findings of a left knee condition. The Veteran's separation examination does not indicate a problem with the lower extremities other than striae on both hips. Post-service VA treatment records do not reflect treatment for a left knee disability. Private treatment records also fail to reflect any left knee disability. In its September 2011 remand, the Board requested the Veteran submit evidence of right knee injury. As stated in the Introduction, the Veteran submitted a written statement clarifying which knee the service connection claim was for, but did not provide any information concerning any recent treatment or diagnosis for his claimed left knee disorder. VCAA notice in May 2006 and May 2007 requested the Veteran submit treatment records and/or complete authorization forms for all treatment providers who treated him for his claimed knee injury. As noted above, the RO's initial and appellate adjudication of the claim was for a knee injury, without specification of left or right, effectively considering both knees. Following the Veteran's clarification that it was his left knee that was injured, the Veteran was provided a supplemental statement of the case (SSOC) in August 2012 advising him that his claimed left knee injury remained denied because there was no evidence that a current left knee disability exists. He was also advised that to substantiate his claim, he must provide evidence which demonstrates the existence of the claimed condition and its possible relationship to service. Following this SSOC, the Veteran responded that he had no further evidence to submit. Thus, the Board finds that prior to and following the September 2011 Board remand, the Veteran was given adequate notice as to the evidence needed to substantiate a claim for service connection for a left knee disability and that his claim was denied due to the lack of evidence of a current disability. The Veteran is not shown to be prejudiced by the Board's one-time recharacterization of the issue in the September 2011 remand. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the Veteran's service treatment records do not reflect treatment or a diagnosis for a left knee condition. In addition, there is no medical evidence showing that a left knee disability has been present at any time during the pendency of the claim. Moreover, at no time has the Veteran provided any lay evidence detailing symptomatology of a current left knee disability. Accordingly, there is no competent and probative evidence indicating the Veteran suffers from a current left knee disability. As such, the claim for service connection for a left knee disability must be denied because the first criterion for the grant of service connection-competent evidence of the disability for which service connection is sought-is not met. In reaching the above conclusions, 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 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Hearing loss The Veteran seeks service connection for hearing loss which he alleges is due to the acoustic trauma he suffered during active service. Specifically, the Veteran has asserted that his hearing loss was due to military noise exposure while working as a load master on aircrafts. The Board concedes that the Veteran was exposed to hazardous noise during service. Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § 3.385 (2013). "[I]mpaired 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 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." Service treatment records show audiogram tests, to included evaluations dated from November 1962 through June 1979, that do not reflect a hearing loss disability for VA purposes as contemplated by 38 C.F.R. § 3.385, even when those dated prior to November 1, 1967 were converted to International Standards Organization-American National Standards Institute (ISO-ANSI). In this regard, prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the ISO-ANSI. In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards for this review. An in-service clinical record, dated August 1981, shows a complaint of hearing loss. The examiner noted that the Veteran experienced occasional difficulty hearing. The examiner found that the Veteran's pure tones were within normal limits from 500 Hz through 4000 Hz, followed by mild loss in the 6000 Hz and 8000 Hz range. On the Veteran's March 1984 separation examination, hearing loss was not diagnosed. The audiogram performed at separation showed puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 15, 5, 5, 10, and 10 decibels respectively in the right ear, and 10, 10, 5, 10, and 10 decibels respectively in the left ear. Post-service VA medical records show that the Veteran was afforded a VA audiological examination in September 2006. The examiner noted that the Veteran's occupational and recreational noise exposure were unremarkable. Upon testing, the Veteran's pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 20, 15, 10, 10 and 35 decibels respectively in the right ear, and 15, 15, 10, 20 and 35 decibels respectively in the left ear. Speech discrimination scores were 94 percent in the right ear and 96 percent in the left ear. The examiner noted that hearing loss was not disabling pursuant to 38 C.F.R. § 3.385. The Veteran submitted a private audiological test from the Piedmont Ear, Nose and Throat Associates, dated in March 2007. The evaluation showed pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 15, 15, 15, 10 and 45 decibels respectively in the right ear, and 15, 15, 20, 20 and 45 decibels respectively in the left ear. Speech discrimination score was 100 percent bilaterally. The private examiner opined that he would consider the hearing loss 90 percent likely to be due to significant noise exposure in the military. The Veteran was afforded a VA audiological examination in November 2011. The Veteran's pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 20, 20, 20, 15 and 25 decibels respectively in the right ear, and 20, 15, 10, 20 and 35 decibels respectively in the left ear. The examiner noted that hearing loss was not disabling pursuant to 38 C.F.R. § 3.385. After a review of the evidence, the Board finds that service connection for hearing loss is not warranted. First, there is no medical evidence that a sensorineural hearing loss disability manifested during active service or within one year of the Veteran's discharge from active service. 38 C.F.R. § 3.307, 3.309. Next, in support of his contentions of service connection, the Veteran submitted a private audiological evaluation dated in March 2007 wherein the examiner stated that he would consider the hearing loss 90 percent likely to be due to significant noise exposure in the military. However, the report does not reflect that hearing was tested in a soundproof environment. Moreover, the private opinion provides no rationale for the conclusion rendered. See 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."). On the contrary, the puretone thresholds found upon examination in the September 2006 and November 2011 VA examinations were obtained utilizing the provisions of 38 C.F.R. § 4.85, but do not show the Veteran meets the criteria for a hearing loss disability under 38 C.F.R. § 3.385. The November 2011 examiner had the opportunity to review the Veteran's claims file, including the opinion of the private physician and the September 2006 VA examination results. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The results of the VA examinations show that the Veteran did not demonstrate hearing loss for VA purposes and there are no speech recognition scores under 94 percent using the Maryland CNC Test. 38 C.F.R. § 3.385. As the VA audiological examinations were conducted in accordance with 38 C.F.R. § 4.85 the Board finds these studies to be of greater probative value than the private audiogram. The Board acknowledges that the private physician in March 2007 and a VA ear disease examiner in September 2006 opined that the Veteran's hearing loss is related to noise exposure in service. However, the most probative audiogram findings of record do not reveal a current hearing loss disability for VA purposes in accordance with 38 C.F.R. § 3.385. Therefore, the Veteran does not have a current hearing loss disability for which service connection can be established. In the absence of a current disability pursuant to 38 C.F.R. § 3.385, service connection cannot be established, and the question of nexus becomes moot. While the Veteran contends he suffers from a hearing loss disability, there is no indication that the Veteran has specialized training in diagnosing audiological disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of sensorineural hearing loss and whether such is disabling for VA purposes requires medical testing. Thus, the Veteran's opinion as to the existence of hearing loss disability is not competent medical evidence. As above, the Board finds the results of the VA audiological examinations are significantly more probative than the Veteran's lay assertion. In summary, the most probative evidence demonstrates that the degree of current hearing loss is not sufficient to meet the criteria for hearing loss disability set forth in the regulations. As such, the claim for service connection for hearing loss must be denied. In reaching the above conclusions, 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 claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER The claim for entitlement to service connection for a right knee disability is dismissed. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for hearing loss is denied. REMAND Although further delay is regrettable, the Board finds that additional development must be accomplished prior to further consideration of the Veteran's appeal. The Veteran is seeking service connection for COPD. A review of the Veteran's service treatment records reveal that abnormal results from a pulmonary function study were noted at his separation examination. Subsequently, in September 2006, the Veteran was afforded a VA respiratory examination and was diagnosed with COPD. The examiner opined that the disorder was due to the Veteran's many years of tobacco use. The examiner did not opine, however, on whether the Veteran's current COPD arose during service. The claim was remanded in September 2011 for another VA examination. The Veteran underwent a VA examination in November 2011. Upon examination, the examiner determined that the Veteran did not have a current diagnosis of COPD. The examiner noted an old healed granulomatous disorder that he found was not active or known to be active since the Veteran's military service. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner further stated that there was no evidence of a pulmonary disorder now or since separation from military service. This last statement, however, is inconsistent with the evidence of record. At the September 2006 VA examination, the Veteran was diagnosed with COPD, although it is unclear whether that examiner reviewed pulmonary function studies when rendering the diagnosis. Additionally, the 2011 examiner noted that current pulmonary function tests (PFTs) showed mild obstruction with no restriction that appears to have developed since military service and is not related to military service or his healed calcified granulomatous disease. However, the examiner did not address the PFTs at separation being noted as abnormal. Therefore, an addendum opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Please return the claims file and the November 2011 examination report to the examiner who conducted that examination, if available, for an addendum opinion. If further examination is necessary, such should be scheduled. If the original examiner is not available, the claims file should be forwarded to another physician to obtain the requested opinion. Following a review of the claims file, the examiner should respond to the following: a. Was the diagnosis of COPD on the September 2006 VA examination a misdiagnosis or otherwise unsupportable based on the evidence of record, to include PFTs conducted that day showing a minimal obstructive lung defect? b. If the September 2006 diagnosis of COPD was valid, did the COPD at least as likely as not (50% or greater probability) manifest during service? In explaining your answer, please address the abnormal PFTs noted on separation examination in 1984. c. Does the obstructive defect noted on several post-service PFTs represent a residual of a pulmonary condition arising in service, to include the old granulomatous disease noted on chest x-rays in service? d. Is the obstructive defect noted on several post-service PFTs a pulmonary disability in and of itself, or is it a benign finding not representative of actual disability? e. If the obstructive defect noted on post-service PTFs is a disability, did it at least as likely as not manifest during service? In explaining your answer, please address the abnormal PFTs noted on separation examination in 1984. The examiner should provide a rationale for all opinions provided. 2. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs