Citation Nr: 1602034	
Decision Date: 01/19/16    Archive Date: 01/27/16

DOCKET NO.  13-20 424	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for right ankle disability.

3.  Entitlement to service connection for right knee disability.

4.  Entitlement to service connection for left knee disability.

5.  Entitlement to service connection for a disability manifested by chest pain.

6.  Entitlement to service connection for residuals of a traumatic brain injury.

7.  Entitlement to an initial compensable rating for low back strain prior to July 10, 2013, and entitlement to an initial staged rating in excess of 10 percent for low back strain from July 10, 2013.



REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

David Nelson, Counsel


INTRODUCTION

The Veteran had active service in the U.S. Army from May 2002 to May 2006.

These matters come before the Board of Veterans' Appeals (BVA or Board) from a November 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In June 2015 the Veteran appeared before the undersigned and delivered sworn testimony via video conference hearing in Waco, Texas.

The claims other than entitlement to service connection for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).





FINDING OF FACT

There has been no demonstration of current left ear or right ear hearing loss disability for VA purposes by the competent clinical evidence of record.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss disability are not met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

By correspondence, including that dated in July 2010, the Veteran was informed of the evidence and information necessary to substantiate the service connection claims, the information required of the Veteran to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence.

The Veteran has received notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  As VCAA notice was completed prior to the initial AOJ adjudication of the claims, such notice was not compliant with Pelegrini.  Importantly, the Board notes that the Veteran is represented in this appeal.  Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the claims such that the essential fairness of the adjudication is not affected.

Duty to Assist

The Veteran's service treatment records are associated with the claims file, as are VA and private medical records.  VA medical opinions obtained in this case for the issues being decided by this decision are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).

During the June 2015 Board hearing, in order to assist the Veteran, the undersigned asked the Veteran questions to determine if there was any evidence outstanding pertinent to the claims.  The undersigned also informed the Veteran that the record would be held open for 30 days in an effort to give the Veteran additional time to submit evidence in support of the appeal.  These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing.  As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record.

The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding.  VA's duties to notify and assist are met, and the Board will address the merits of the claim.

Applicable Laws and Analysis for service connection claim

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 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.  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).  The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may be granted 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).

Service connection for certain specified chronic diseases may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).


Hearing loss

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

At his June 2015 Board hearing the Veteran did not directly discuss his hearing loss but stated that he had been impacted by a large blast from an IED during service in Iraq.

The Veteran's service treatment records are negative for any recorded evidence of complaints, treatment, or diagnoses of any hearing loss.  The Veteran's April 2006 service separation examination noted that the Veteran's ears were normal.  Audiometric findings (ISO units) were, in pertinent part, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
0
-5
5
LEFT
15
10
5
-5
5

At a September 2010 VA audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
0
5
LEFT
10
10
0
5
10

Speech recognition scores were right ear, 94 percent, and left ear, 94 percent.  The diagnosis was clinically normal hearing.

The reported audiometric findings from the September 2010 VA audiological examination did not demonstrate right ear or left ear hearing loss disability for VA purposes.  In fact, the record is absent for any competent clinical evidence showing that the Veteran has current right or left ear hearing loss "disability" for VA purposes.  38 C.F.R. § 3.385.  Additionally, a March 2014 VA record indicated that the Veteran had normal hearing.  The Board observes that the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to diagnose hearing loss disabilities.

Absent evidence of a current hearing loss disability, an award of service connection for right or left ear hearing loss is not appropriate.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).


ORDER

Service connection for bilateral hearing loss is denied.


REMAND

As for the issue of entitlement to an initial compensable rating for low back strain prior to July 10, 2013, and entitlement to an initial staged rating in excess of 10 percent for low back strain from July 10, 2013, the Board observes that at his June 2015 Board hearing the Veteran essentially asserted that his low back disability had worsened since the most recent VA examination in July 2013.  The Board finds that more current clinical findings as to the Veteran's low back disability would be useful in adjudicating the appeal as that examination is not sufficiently contemporaneous to decide the appeal.

As for the issues of entitlement to service connection for right ankle disability, right knee disability, left knee disability, a disability manifested by chest pain, and entitlement to service connection for residuals of a traumatic brain injury, the Board notes that at his June 2015 Board hearing the Veteran provided credible testimony that he had such symptoms related  to these disabilities during service, including in connection with the residuals of an explosion the Veteran experienced while serving in Iraq.  

The Board finds that the evidence of record does not contain sufficient competent medical evidence to decide the service connection claims.  In this regard, the Board notes that previous examinations, to the extent that such were conducted, were either lacking in specific negative findings (as to the ankle and knees) or have become superseded by indications that the Veteran has current disability or symptoms of a disability manifested by chest pain and residuals of a traumatic brain injury (headaches).  The Board finds that providing the Veteran an examination for the purpose of obtaining an opinion concerning a possible relationship between the Veteran's claimed disabilities and his military service is appropriate in this case.  38 C.F.R. § 3.159(c)(4) (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate the Veteran's complete VA treatment records dated since May 14, 2014.

2.  Schedule the Veteran for a VA examination of the claimed right ankle disability, right knee disability, left knee disability, disability manifested by chest pain, and residuals of a traumatic brain injury.  The examiner must review the claims file and should note that review in the report.  Any indicated studies must be completed.  Following examination of the Veteran and review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran had right ankle disability, right knee disability, left knee disability, disability manifested by chest pain, or residuals of a traumatic brain injury that had its onset in service or within one year of service discharge, or is otherwise etiologically related to active service.  A rationale for all opinions should be provided.

3.  Schedule the Veteran for a VA examination to determine the current severity of service-connected left knee disability.  The claims file must be made available to the examiner and any indicated diagnostic tests and studies must be accomplished.

4.  Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, and then return the case to the Board.

The Veteran 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 2014).




______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs