Citation Nr: 1637064 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 09-30 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for left ear nerve damage. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had honorable active duty service from March 1969 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied a claim for service connection for bilateral hearing loss and left ear nerve damage. The Veteran presented testimony at the RO before a Decision Review Officer in November 2009, and before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing in April 2015. Transcripts from both hearings are of record. The claim for service connection for bilateral hearing loss and left ear nerve damage was remanded by the Board in June 2015 for additional development. Service connection for bilateral hearing loss was subsequently granted in a February 2016 rating decision. Given that the only portion of the original claim remaining on appeal is that for service connection for left ear nerve damage, the issue has been recharacterized as reflected on the title page. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). FINDING OF FACT A current diagnosis of left ear nerve damage is not shown by the medical evidence of record. CONCLUSION OF LAW The criteria for service connection for left ear nerve damage have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by a letter in March 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, and VA examination reports. The Veteran was afforded a hearing before the Board and a copy of the transcript is of record. There is no allegation that the hearing provided to the Veteran was deficient in any way and further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Board also notes that actions requested in the prior remand have been undertaken. More specifically, the Veteran was asked to provide completed release forms with the names and addresses of medical care providers who had treated him for his hearing disabilities, to include Ashland Hearing Center, in an August 2015 letter; VA medical records were obtained; and a VA medical opinion was obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that the Veteran did not reply to the August 2015 letter. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Claim Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran essentially contends that he was told by several doctors that he visited after service that he had left ear nerve damage as a result of exposure to acoustic trauma during active duty service. See VA Forms 21-4238 dated May 2008 and October 2009; October 2008 notice of disagreement (on VA Form 9). The Veteran testified in November 2009 that he was told the nerve damage had resulted in both hearing loss and tinnitus. The Board notes that service connection for those disabilities has already been established and, as noted above, the only issue remaining on appeal is whether service connection is warranted for left ear nerve damage. Service treatment records are devoid of reference to complaint of, or treatment for, left ear nerve damage. At the time of an October 1970 separation examination, clinical evaluation of the Veteran's ears - general, drums, and neurological functioning were normal. See report of medical examination. The post-service evidence of record includes VA and private treatment records, as well as several VA examination reports. The Board has reviewed the post-service evidence in its entirety and can find no mention that the Veteran has been found to have left ear nerve damage. The preponderance of the evidence is against a finding of service connection for left ear nerve damage. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the relevant statute requires existence of present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). While the Board acknowledges the Veteran's assertion that he has left ear nerve damage as a result of active duty service, to include exposure to acoustic trauma, he is not competent to diagnose left ear nerve damage as such a condition is not a disability that is capable of direct observation. Rather, such condition requires medical testing and expertise to diagnose. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Therefore, the Veteran's assertions are not competent medical evidence. As noted above, the Veteran is already service connected for bilateral hearing loss and tinnitus. Without evidence of a current diagnosis of left ear nerve damage distinct from those disabilities, service connection is not warranted. See 38 C.F.R. § 3.303. As the preponderance of the evidence is against the claim, the statutory provisions regarding resolution of reasonable doubt are not applicable. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54. ORDER Service connection for left ear nerve damage is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs