Citation Nr: 1410183	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  10-40 859A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a bilateral hip disability.

2.  Entitlement to service connection for hepatitis B infection.

3.  Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

S. Coyle, Counsel



INTRODUCTION

The Veteran served on active duty from April 1967 to April 1969.  The Veteran was awarded the Purple Heart Medal, Bronze Stars and a Vietnam Combat Certificate.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The issue of entitlement to an initial compensable rating for hearing loss 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.


FINDINGS OF FACT

1.  The Veteran engaged in combat with the enemy.

2.  The Veteran does not have a bilateral hip disability which had its onset in, or is in any way attributable to, active service.  

3.  No active hepatitis B infection or residuals of such an infection are currently diagnosed, nor has any been diagnosed during the pendency of the claim.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a bilateral hip disability are not met.  38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 

2.  The criteria for service connection for hepatitis B infection are not met.  38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA 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.  

June 2009 and July 2009 letters satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The claims were subsequently readjudicated, most recently in an October 2010 statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).   In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  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); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 

The Veteran's service treatment records and private treatment records have been obtained; he did not identify any outstanding VA or non-VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  

The Veteran has not been afforded a VA examination to determine the etiology of his hepatitis B infection or bilateral hip disorder.  However, the record is devoid of any evidence of a current hepatitis B infection or chronic residuals of such an infection; nor is there any competent evidence linking the Veteran's bilateral hip disability to his service.  Thus, an examination is not necessary to decide these claims.  Id. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). 

Law and Regulations

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; 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). 

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b). 

Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).   See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Bilateral Hip Disability

The Veteran has been diagnosed with severe osteoarthritis in both hips, which led to bilateral total hip arthroplasties.  

At the outset, the Board acknowledges that the Veteran received a Purple Heart Medal for his in-service experiences.  As such, it is conceded that the Veteran engaged in combat with the enemy.  38 U.S.C.A. § 1154; 38 C.F.R. § 3.304.  However, with regard to his bilateral hip disability claim, the Veteran does not assert, and the record does not reflect, any hip injuries or hip pain during service.  

In fact, the Veteran's service treatment records are silent for reports of arthritis or any other hip disability or injury, nor was arthritis diagnosed during service or within a year of his separation from service.  Accordingly, the Veteran's bilateral hip disability did not have its onset in service nor did it manifest to a degree of 10 percent or more within one year of leaving military service.  38 C.F.R. §§ 3.303, 3.307(a)(3); 3.309(a).  The Board also points out that because the service treatment records do not note a bilateral hip injury and given the absence of the Veteran's assertions maintaining that he sustained an in-service hip injury, the theory of continuity of symptomatology since service is not applicable.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In fact, during his March 2002 VA examination, the Veteran specifically stated that his hip pain had begun only 3 or 4 years prior, well after his separation from service.  

In addition to the aforementioned, the probative and persuasive evidence also fails to suggest a nexus between the Veteran's current disability and active military service.   In July 1974, the Veteran reported left hip pain subsequent to a low back injury at work.  He repeated this assertion in a March 1979.  At that time the diagnosis was low back pain and muscle spasm especially on the left and radiating into left hip, secondary to displacement of L-3 vertebra producing posterior spinal nerve trunk pressure.  In neither case did the Veteran assert that his hip pain began during service, or that it resulted from an incident in service.  

During a March 2002 VA examination, the Veteran reported pain in the hips, which had developed three or four years prior to the examination, and began "well after the service."  The Veteran indicated that he did not have any trouble with his legs in service.  

The Veteran was eventually diagnosed with severe osteoarthritis, and underwent bilateral total hip arthroplasties.  

There is no probative and persuasive lay or medical evidence linking the Veteran's bilateral hip disability to his service.  The Veteran's healthcare providers have not indicated that his bilateral hip disorder is the result of service, nor has the Veteran advised them of a relationship to service.  

The Board acknowledges the Veteran's distinguished service.  However, it is bound by applicable law, regulations and court precedent.  The evidence does not show the incurrence of a bilateral hip disability in service.  Nor does it tend to show a nexus demonstrating that the Veteran's bilateral hip disability is in any way related to his service.  Therefore, the preponderance of the evidence is against the claim for service connection for a bilateral hip disability; there is no doubt to be resolved; and service connection is not warranted.

Hepatitis B Infection

In February 2008, after donating blood, the Veteran was notified that his blood had tested positive for antibodies to hepatitis B, indicating that he had been exposed to hepatitis B at some point during his lifetime.  Additional testing showed that the Veteran did not have an active hepatitis B infection.  

In fact, the February 2008 letter read, in relevant part, the following: 
A review of your donation history shows more than one occurrence of a positive screening test for anti-HBc.  The presence of these antibodies in your blood indicates that you may be immune to Hepatitis B, because you have been exposed to it in the past.  There is no indication that you are currently infected, or that you are contagious to others.  Your blood was tested by a method that looks for current infection (HBsAG), which was not positive. 

The Veteran does not assert, and the record does not reflect, that he currently has an active hepatitis B infection or chronic residuals of such an infection.  Rather, his claim appears to be based on the idea that he would like to be service-connected for this disorder in case chronic residuals from hepatitis B manifest in the future.  

Again, the Board acknowledges the Veteran's honorable and valiant service.  However, a service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  As there is no evidence of a disability resulting from exposure to hepatitis B, the preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection is not warranted.


ORDER

Service connection for a bilateral hip disability is denied.

Service connection for hepatitis B infection is denied. 


REMAND

The last VA examination of the Veteran's hearing acuity was conducted in March 2010.  The Veteran asserts that the examination was conducted with his hearing aids in place; however, such examinations are to be conducted without hearing aids.  38 C.F.R. § 4.85(a) (2013).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  A new VA audiological examination must be scheduled.  

The Veteran has been treated for hearing loss by a private physician, Dr. R.O.  Dr. O's records must be obtained, pending any necessary release from the Veteran, as they are likely relevant to the Veteran's claim.  38 C.F.R. § 3.159(c)(1).  

Accordingly, the case is REMANDED for the following action:

1.  After securing any necessary authorization, obtain all treatment records from Dr. O.  If any records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow him the opportunity to obtain the records.

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

All indicated tests must be conducted and all signs and symptoms of the service-connected hearing loss must be reported in detail.  The examiner is advised that the Veteran must not wear hearing aids during the evaluation; the report must reflect that the examination was conducted without hearing aids.  

The examiner must fully describe the functional effects of the Veteran's hearing loss disability.  The rationale for any opinions expressed must be set forth by the examiner.   

3.  Then, readjudicate the appeal.  If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.  

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 matter must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



______________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs