Citation Nr: 1343006 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 09-37 314A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a skin disability, claimed as hives. 3. Entitlement to an increased initial evaluation for posttraumatic stress disorder (PTSD), currently rated 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from August 1968 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2009, the Veteran requested the opportunity to testify at a Travel Board hearing. He was scheduled for such a hearing. In September 2013, however, the Veteran's representative stated that the Veteran wished to cancel his request for a hearing. His hearing request is thus considered withdrawn. In September 2013, the Veteran's representative from the San Antonio office, also stated that the Veteran did not wish to continue his appeal for service connection for bilateral hearing loss and hives. However, the following month, the Veteran's representative at the National Office continued to pursue the claims. The Board will address them. With regard to the PTSD claim, the Board is assuming jurisdiction of that issue and remanding it pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issues of service connection for a skin disability and an increased initial evaluation for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Bilateral hearing loss was noted on pre-induction examination. 2. The Veteran's preexisting bilateral hearing loss did not increase in severity during service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 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 the claimant of any evidence that 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a November 2008 letter issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The November 2008 letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the physical and electronic claims file includes the appellant's service treatment records, post-service VA treatment records, and a VA examination report. A VA examination opinion was rendered in February 2009. The VA examination obtained in this case is sufficient, as 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 disorder. Thus, with respect to the Veteran's claim, there is no additional evidence which needs to be obtained. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty under the VCAA. Criteria & Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "(w)hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "(o)nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b) (2013), and that "(h)istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increased 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 C.F.R. § 3.306. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicates some degree of hearing loss. See also Hensley v. Brown, 5 Vet. App. 155 (1993). A service Report of Medical Examination dated in June 1968 for enlistment purposes reflects testing showed pure tone thresholds to be as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 -5 NA 35 RIGHT 5 5 0 NA 30 Although hearing loss was not explicitly diagnosed, such puretone findings reflect hearing loss at 4000 Hertz in the left and right ears. Thus, hearing loss was "noted" prior to entry into service, and hearing loss preexisted service. (See Hensley v. Brown, above, and the report of VA examination dated in February 2009.) Accordingly, the question becomes whether hearing loss underwent an increase in severity beyond its natural progression during service, i.e., was it aggravated by service. All the service treatment records are negative for pertinent complaints or findings relating to hearing loss. On hearing testing conducted in February 1970, for separation purposes, the Veteran's hearing was noted as 15/15 (normal) in both ears using the "whispered voice" test. No hearing loss was detected or reported on this report, and the Veteran certified to the medical officer he had informed him of all known defects. Plainly, this record does not reflect an increase in severity of the Veteran's hearing loss during service. Although the Veteran currently is shown to have a hearing loss disability as revealed by the VA examination conducted in February 2009, nothing in the record, or in the Veteran's contentions, or in statements submitted on his behalf indicate an increase in disability occurred during service. Indeed, the Veteran's November 2008 report that his hearing loss began in 1992, reinforces the conclusion that hearing loss was not aggravated during service. Since the hearing loss noted at entrance was not aggravated by service, a basis upon which to establish service connection has not been presented, and the appeal is denied. In reaching this conclusion, the Board notes that the Veteran's theory of entitlement appears to be that his current hearing loss was caused by noise exposure in service. However, since his hearing loss pre-existed service, this direct service connection theory of entitlement is not applicable. Moreover, to the extent he may mean that the noise to which he was exposed in service, later caused the level of impairment from which he now suffers, (delayed aggravation) he has not submitted any evidence that this is medically plausible, (and he is not shown to have the expertise to credibly assert such a medical conclusion). ORDER Service connection for bilateral hearing loss is denied. REMAND Regarding hives, in connection with his claim, a number of treatment records dated since 2005 were obtained which showed complaints of hives appearing on various parts of the Veteran's body, including the lower lip region. The Veteran's service medical records show he presented on one occasion complaining of a shaving rash, although apparently, none was actually observed. (The entry reads, "Has no shaving rash.") He also was treated for balanitis, and venereal warts in service. Given the skin complaints noted in service, together with evidence of some current skin problems, an examination should be provided to ascertain the likelihood any current disability may be related to the in-service complaints and findings. Finally, the Board observes that a March 2009 rating decision established service connection for PTSD and assigned a 70 percent disability rating. In October 2009, attached to a VA Form 9, the Veteran filed a notice of disagreement with the initial rating assigned. There is no indication that a statement of the case was issued with regard to the PTSD issue. When a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999), see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). Since the Veteran has filed a timely notice of disagreement with the disability rating assigned for PTSD in the March 2009 rating decision, a statement of the case must be issued. 38 CFR § 19.29 (2013). Accordingly, the case is REMANDED for the following actions: 1. Issue a statement of the case with regard to the Veteran's increased initial rating claim for PTSD, to include notification of the need to timely file a Substantive Appeal to perfect his appeal of this issue. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service hives symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. The Veteran should undergo an examination to obtain a medical opinion as to whether any current hives or skin disability had its onset in service. After a review of the claims file, the examiner should offer an opinion regarding whether it is at least as likely as not that any current skin disability is related to service. An explanation for any conclusions expressed should be provided, which should mention the Veteran's June 1969 complaints of shaving rash, as well as the in-service notations concerning balanitis and venereal warts, and the post-service history he may report. 4. Then, readjudicate the claim for service connection for skin disability. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board, if in order. The appellant 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 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. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs