Citation Nr: 1412634 Decision Date: 03/26/14 Archive Date: 04/08/14 DOCKET NO. 09-32 173A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a lumbar spine disability and if so, whether service connection is warranted. 2. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H.Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1975 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The claims file has subsequently been transferred to the Wichita, Kansas RO. In November 2010 the Veteran testified before a Decision Review Officer (DRO). In August 2013 the Veteran testified at a Board hearing. Transcripts of these hearings have been associated with the claims file. The Veteran was granted service connection for a right knee disability in a July 2009 rating decision and granted service connection for tinnitus in a February 2012 rating decision. The Veteran has not disagreed with the assigned disability ratings or the effective dates. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.) Therefore, these matters are considered resolved and are not in appellate status. In the Veteran's July 2006 claim, he raised the issue of service connection for asthma. A statement of the case on this claim was issued in July 2009. However, the Veteran clarified on his September 2009 appeal, VA Form 9, that he was not appealing the issue of entitlement to service connection for asthma. As such, the only issues before the Board are listed on the first page of this decision The reopened issue of entitlement to service connection for a lumbar spine disability 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's claim of entitlement to service connection for a lumbar spine disability was denied in a May 2007 rating decision; the Veteran did not perfect an appeal. 2. Evidence associated with the claims file since May 2007 is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection. 3. Hearing loss is not shown to be due to a disease or injury in-service or to any incident of military service. CONCLUSIONS OF LAW 1. Evidence received since the May 2007 rating decision that denied service connection for a lumbar spine disability, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2013). 2. The criteria for the establishment of service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, 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 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a letter prior to the initial adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination which contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and provides an opinion regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at RO and Board hearings. The hearings were adequate as the Judges who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In light of the foregoing, 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, 5103A; 38 C.F.R. § 3.159. New and Material Evidence The Veteran sought service connection for a lumbar spine disability which was denied in a May 2007 rating decision. The Veteran did not complete an appeal for this decision and it is final. Upon review, the Board finds that evidence received since the May 2007 final decision, to include VA treatment records and the Veteran's testimony, is new and material. The claim is reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a chronic disease, including hearing loss, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran alleges that he had in-service noise exposure specifically from an M16 qualification testing. The Veteran also alleged noise exposure from small arms fire, mortars, artillery, etc. The Veteran has testified that while he was issued earplugs in service, he did not wear them at all times. See e.g., November 2010 DRO hearing transcript. With respect to claims of service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. For the 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 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, 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. The results of an October 2011 VA audiogram show that the Veteran currently has a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. At the Veteran's initial July 1977 entrance examination the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 - 15 LEFT 25 15 15 - 30 The Veteran denied any ear trouble at his entrance examination and hearing loss was not diagnosed. At the Veteran's May 1980 separation examination the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 15 LEFT 15 15 20 20 25 The Veteran again denied any ear trouble and hearing loss was not diagnosed. The service treatment records show that although the Veteran reported various other health conditions, he did not report hearing loss at any time during service. See e.g., October 1975 treatment record for complaints of left knee pain and November 1978 record noting asthma complaints. Hearing loss was also not diagnosed at any time during service. This weighs against the Veteran's contentions that his claimed disorder is related to service. In October 1980, two months after separation from service, the Veteran filed a claim for disability compensation for a dislocated shoulder. He did not reference hearing loss on this application or at his October 1980 VA examination. This weighs against the Veteran's contentions that his hearing loss began in service and continued on thereafter. The first complaints of hearing loss come from a statement dated in July 2006, 26 years after separation from service. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The evidence weighs against the Veteran's claim for service connection. The Veteran was afforded a VA audiological examination in October 2011. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 45 LEFT 10 10 30 30 60 The Veteran's speech recognition scores on the Maryland CNC Test were 94 percent for the right ear and 96 percent for the left ear. The Veteran reported that his hearing loss began in service and that post service he had no recreational noise exposure. He also denied any recent ear pathology or head injury. The Veteran was diagnosed with sensorineural hearing loss bilaterally. The examiner opined that the Veteran's hearing loss was not related to service. Her rationale was that medical literature revealed that there can be a threshold difference of as much as 10 decibels in different audiogram testing results. She also noted the Veteran's hearing loss had not gotten worse more than 10 decibels from his entrance to his exit physical and therefore was not likely related to service. The Board has considered the statements of the Veteran that he currently has hearing loss as a result of in service noise exposure. See e.g., December 2006 statement. The Veteran is competent to report observable symptoms, including trouble hearing, difficulty communicating, and the need to turn the volume up when watching television. Layno v. Brown, 6 Vet. App. 465 (1994). While competent to discuss symptoms, the Veteran is not then competent to diagnose disabilities and link them back to service. Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), diagnosing and determining the etiology of a bilateral hearing loss disability falls outside the realm of common knowledge of a lay person. See Jandreau, supra. In this case, given the Veteran's lack of medical expertise, his assertions that he currently has a bilateral hearing loss disability that is related to service are beyond his competence. Further, as there is no evidence of record of a bilateral hearing loss disability within one year of service discharge, the presumption of service connection is not applicable because the disorder's onset was beyond the presumptive period. 38 C.F.R. §§ 3.307, 3.309(a). Accordingly, the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for a lumbar spine disability is reopened; to this extent only, the appeal is granted. Entitlement to service connection for a bilateral hearing loss disability is denied. REMAND The Veteran testified that he injured his back at the same time he injured his right knee in service and that he has been self treating. The Veteran also testified he was diagnosed shortly after service with spondylolisthesis. The Veteran is currently diagnosed with osteochondrosis, degenerative joint disease, and spondylosis. The March 2010 VA examiner only considered whether a lumbar spine disability was related to a right knee disability. On remand, a medical opinion should be obtained to determine if a lumbar spine disability is directly related to service. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all records of VA and non-VA health care providers who provided treatment for his lumbar spine disability. a) After obtaining any appropriate authorizations for release of medical information, the Agency of Original Jurisdiction (AOJ) must seek to obtain any potentially relevant records that have not been previously received from each health care provider the Veteran identifies. The Veteran should be notified that no treatment records were ever received from the Lafene Student Health Center at Kansas State University. b) The AOJ must associate with the claims file all outstanding medical treatment records from any VA treatment facility. c) The Veteran must also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them. 2. Ask an appropriate VA examiner to provide an opinion as to the etiology of the Veteran's lumbar spine disability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE), to include this remand 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 indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner should state whether it is at least as likely as not that the Veteran's lumbar spine disability is related to service. The Veteran is not claiming that his lumbar spine disability is related to his right knee disability. His contention is that both injuries occurred during the same accident. See September 2011 notice of disagreement. The examiner must consider the Veteran's March 2010 VA examination and his August 2013 Board hearing testimony. For any opinions expressed, the examiner MUST PROVIDE AN EXPLANATION BASED ON THE RECORD. The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner. If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an additional examination. It is the Veteran's responsibility to report for any examination scheduled, and to cooperate in the development of the case; the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2013). 3. After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs