Citation Nr: 1414740 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 10-01 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a right hand disability. 2. Entitlement to service connection for a disability manifested by low blood pressure. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for an upper back disability. 6. Entitlement to an initial evaluation in excess of 10 percent prior to August 20, 2009 and in excess of 20 percent since August 20, 2009, for residuals of Bankart repair with left shoulder strain. 7. Entitlement to an initial evaluation in excess of 10 percent prior to August 20, 2009 and in excess of 20 percent since August 20, 2009, for cervicobrachial syndrome and intersegmental dysfunction of the cervical spine. 8. Entitlement to an initial evaluation in excess of 10 percent for lumbar strain. 9. Entitlement to an initial compensable evaluation for plantar fasciitis of the right foot. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from October 2001 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions dated in August 2008, July 2009, September 2009, and December 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In November 2012, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. At that hearing, the Veteran submitted additional evidence directly to the Board accompanied by a signed written waiver of the RO's initial consideration of this additional evidence. In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's electronic ("Virtual VA") file, as well as the evidence in his physical claims file. The issues of entitlement to service connection for headaches and memory loss have been raised by the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board acknowledges that the seventh, eighth, and ninth issues set forth on the title page have not been formally certified for appellate review. Nevertheless, for the reasons detailed below, the Board has assumed jurisdiction over those claims for the limited purpose of remanding them for issuance of a Statement of the Case (SOC). See 38 CFR § 19.9(c) (2013); see also Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issues of entitlement to service connection for tinnitus; entitlement to an initial evaluation in excess of 10 percent prior to August 20, 2009, and in excess of 20 percent since August 20, 2009, for residuals of Bankart repair with left shoulder strain; entitlement to an initial evaluation in excess of 10 percent prior to August 20, 2009, and in excess of 20 percent since August 20, 2009, for cervicobrachial syndrome and intersegmental dysfunction of the cervical spine; entitlement to an initial evaluation in excess of 10 percent for lumbar strain; and entitlement to an initial compensable evaluation for plantar fasciitis of the right foot 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. On November 2, 2012, prior to the promulgation of a decision in the appeal, the Board was advised by the appellant that a withdrawal of this appeal was requested with respect to the issue of entitlement to service connection for low blood pressure. 2. The Veteran does not have a current chronic right hand disability that is related to active service. 3. The Veteran does not have bilateral hearing loss for VA purposes that is related to active service. 4. The Veteran does not have a current chronic upper back disability that is related to active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant with respect to the issue of entitlement to a disability manifested by low blood pressure have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. A right hand disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 3. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 4. An upper back disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal 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 authorized representative. Id. In the present case, the appellant has withdrawn his appeal with respect to the issue of entitlement to service connection for a disability manifested by low blood pressure; and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this issue, and it is dismissed. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in March 2008 and May 2012 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in July 2012. In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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.) VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, during the November 2012 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims, 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 then operated to establish when a hearing loss could be service connected. Hensley, 5 Vet. App. at 159. For the purposes of applying the laws administered by the VA, impaired hearing is 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 or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (2013). The Board has reviewed all service treatment records and all post-service treatment records, including VA treatment records, VA examinations, and private treatment records. Service treatment records demonstrate that the Veteran injured his right hand in a motor vehicle accident in December 2002. X-ray of the right hand at that time was normal. The Veteran reported for follow up three days later at which time he reported some pain in his right hand; and ten days after the accident, he reported that it felt like there was a piece of glass over his fourth knuckle of his right hand. Physical examination demonstrated right fourth proximal phalanx with palpable small nodule and tenting of skin with tension. A two-millimeter square piece of glass was found and removed without complications. Service treatment records also demonstrate that on VA audiometric examination in April 2004, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 50 50 45 50 LEFT 5 10 0 5 0 A September 2004 health record noted that the Veteran reported loss or change in hearing. On the Report of Medical History completed by the Veteran in October 2007, the Veteran reported hearing loss due to work. Service treatment records further demonstrate that on the October 2007 Report of Medical History, the Veteran reported, inter alia, upper back pain. Despite evidence of a right hand injury, audiometric findings showing impaired hearing, and upper back complaints during service, the Board cannot conclude that a "chronic" right hand, hearing loss, or upper back disability was incurred during service. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Subsequent audiograms in December 2004, May 2005, June 2006, and May 2007 showed normal hearing. In addition, on VA audiometric examination in April 2008, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 5 0 LEFT 10 5 5 5 5 Speech audiometry revealed speech recognition ability of 100 percent in both ears. Similarly, on VA examination in April 2008, the Veteran had no complaints or impairments with regard to his right hand; and, in fact, he declined physical examination of his right hand. Further, although the Veteran had subjective complaints of dorsal spine pain which he described as moderate intermittent pain occurring twice per week lasting five minutes in duration, after physical examination, the Veteran was diagnosed as having normal dorsal spine. In light of the above, the Board finds that service connection cannot be established for a right hand disability, bilateral hearing loss, or an upper back disability because the competent evidence does not show the presence of a current chronic right hand disability, a bilateral hearing loss disability for VA purposes, or a current chronic upper back disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), it was noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents resulted in disability. In addition, the Board does not find the Veteran competent to provide opinions regarding diagnoses and etiology of reported right hand pain, decreased hearing acuity, and upper back pain as these questions are of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's subjective complaints of right hand and upper back pain without diagnosed or identifiable underlying maladies or conditions, do not in and of themselves constitute disabilities for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit-of-the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER The appeal with respect to the issue of entitlement to service connection for a disability manifested by low blood pressure is dismissed. Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for an upper back disability is denied. REMAND With respect to the issue of entitlement to service connection for tinnitus, the Veteran underwent a VA examination in April 2008 at which time the VA examiner noted that the Veteran reported only a very intermittent tinnitus occurring once a month for 15 seconds which was certainly comparable to the normal population at large. Unfortunately, the examiner did not provide an opinion as to whether it was at least as likely as not that the Veteran's tinnitus was in anyway related to his active duty service to include in-service acoustic trauma, in-service episode of decreased hearing acuity, or in-service head injury. In addition, there was no claims file available for review. Thus, the claim for service connection for tinnitus is remanded to afford the Veteran an additional examination to determine the nature and etiology of his tinnitus. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). With respect to the issue of entitlement to higher ratings for residuals of Bankart repair with left shoulder strain, at the November 2012 Travel Board hearing, the Veteran identified private treatment records. Specifically, the Veteran testified that he had been seeing a chiropractor three times a week for about six or seven months for numerous complaints including his shoulder. With respect to the issues of entitlement to higher ratings for cervicobrachial syndrome and intersegmental dysfunction of the cervical spine, lumbar strain, and plantar fasciitis of the right foot, in a May 2012 letter, the Veteran was advised that the Statement of the Case dated December 16, 2009, erroneously included these issues as being on appeal. The letter explained to the Veteran that the Decision Review Officer decision of December 18, 2009, granted service connection for cervicobrachial syndrome and intersegmental dysfunction of the cervical spine, lumbar strain, and plantar fasciitis of the right foot and that this grant was considered a full grant of benefits sought on appeal for these issues. The Veteran was advised that if he disagreed with the evaluation provided for these issues, he would be provided an additional 60 days to submit a Notice of Disagreement; and if no response was received within the 60-day period, any appeal for these three issues would be closed. Although no notice of disagreement was received following the May 2012 letter, the Board construes a VA Form 9, Appeal to Board of Veterans' Appeals, received by VA in January 2010, as a Notice of Disagreement with the December 2009 Decision Review Officer decision as the Veteran indicated that he was appealing all the issues listed on the Statement of the Case which included the issues of evaluation of cervicobrachial syndrome and intersegmental dysfunction of the cervical spine, evaluation of lumbar strain, and evaluation of plantar fasciitis of the right foot. As such, the RO must issue another Statement of the Case, and the Veteran provided an additional opportunity to perfect his appeal as to these issues. See 38 C.F.R. § 19.9(c); see also Manlincon, 12 Vet. App. at 240-41. Accordingly, the case is REMANDED for the following action: 1. The Veteran and his representative should be provided a Statement of the Case with respect to the issues of entitlement to an initial evaluation in excess of 10 percent prior to August 20, 2009, and in excess of 20 percent since August 20, 2009, for cervicobrachial syndrome and intersegmental dysfunction of the cervical spine, entitlement to an initial evaluation in excess of of 10 percent for lumbar strain, and entitlement to an initial compensable evaluation for plantar fasciitis of the right foot. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. If a timely substantive appeal is not filed, the issues should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 2. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his residuals of Bankart repair with left shoulder strain that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file, including private treatment records of Dr. Easaw from 2012. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 3. The Veteran should be afforded the appropriate VA examination to determine the etiology of his current tinnitus. The Veteran is to be notified that it is his responsibility to report for the examination and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. The examiner is to be provided access to the claims folder, Virtual VA, and VBMS. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has current, chronic tinnitus that is in any way related to the Veteran's active duty service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood). 4. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be 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 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). ______________________________________________ D. C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs