Citation Nr: 1801196	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-35 020	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to an effective date earlier than June 8, 2011, for the grant of service connection for tinnitus.

2.  Entitlement to an effective date earlier than February 25, 2004 for the 10 percent disability rating for residuals, fracture right fibula.

3.  Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disability, to include as secondary to service-connected residuals, fracture right fibula.

4.  Whether new and material evidence has been received to reopen a claim for service connection for a bilateral knee condition, to include as secondary to service-connected residuals, fracture right fibula.

5.  Whether new and material evidence has been received to reopen a claim for service connection for a bilateral foot disability, claimed as plantar fasciitis, to include as secondary to service-connected residuals, fracture right fibula.

6.  Entitlement to service connection for a bilateral hip disorder.

7.  Entitlement to service connection for sleep apnea.

8.  Entitlement to service connection for bilateral hearing loss.

9.  Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and/or chronic adjustment disorder, and to include as secondary to service-connected residuals, fracture right fibula.

10.  Entitlement to an initial rating in excess of 20 percent for diabetes mellitus.

11.  Entitlement to an increased rating in excess of 10 percent for residuals, fracture right fibula.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. M. Lunger, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1968 to July 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2013, June 2013 and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

The Veteran was scheduled for a travel board hearing before a Veterans Law Judge (VLJ) in May 2017; however the record reflects that the hearing was cancelled by the Veteran.  Thus, the Veteran's request for a hearing is deemed withdrawn.  38 C.F.R. § 20.702(e) (2017).

The Board has recharacterized the Veteran's claim for adjustment disorder with mixed anxiety and depression, as entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, to include chronic adjustment disorder, to include as secondary to service-connected disabilities.  The claim has been recharacterized to broadly reflect that the scope of the claim includes any acquired psychiatric disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

The issue of clear and unmistakable error (CUE) with regard to the effective date assigned in the RO's March 2005 decision for the 10 percent disability rating for fracture, right fibula has been raised by the record in an August 2013 filing of the Veteran's former representative, but has not been adjudicated by the agency of original jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

The issues of entitlement to an increased initial rating for diabetes mellitus, type II increased rating for residuals, fracture right fibula and entitlement to service connection for an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1.  Prior to June 8, 2011, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for tinnitus.

2.  Prior to September 21, 2004, there was no formal claim, informal claim, or written intent to file a claim for an increased evaluation for fracture, right tibula.

3.  Evidence added to the record since the November 2007 Board decision does not relate to an unestablished fact that is necessary to establish service connection for a back disorder, to include as secondary to service-connected residuals, fracture right fibula.

4.  Evidence added to the record since the November 2007 Board decision does not relate to an unestablished fact that is necessary to establish service connection for a bilateral knee disorder, to include as secondary to service-connected residuals, right fibular fracture.

5.  Evidence added to the record since the February 2014 Board decision does not relate to an unestablished fact that is necessary to establish service connection for a bilateral foot disorder, claimed as plantar fasciitis, to include as secondary to service-connected residuals, right fibular fracture.

6.  There is no competent lay or medical evidence of record showing that the Veteran currently suffers from a bilateral hip disorder.

7.  There is no competent medical evidence of record showing that the Veteran has sleep apnea that had its onset during active service, or is otherwise related to active service.

8.  The Veteran does not have hearing loss that is of such severity that it constitutes a current hearing loss "disability" for service connection purposes under section 3.385 of VA regulations.


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than June 8, 2011, for the grant of service connection for impairment of supination and pronation of the left forearm have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.155, 3.400 (2017).

2.  The criteria for an effective date earlier than February 25, 2004 for a 10 percent disability rating for fracture, right fibula, have note been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.155, 3.400 (2017).

3.  The criteria for reopening a claim of entitlement to service connection for a back disorder have not been met.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017).

4.  The criteria for reopening a claim of entitlement to service connection for bilateral knee disorder have not been met.  38 U.S.C. § 5108 (West 2012); 
38 C.F.R. § 3.156 (2017).

5.  The criteria for reopening a claim of entitlement to service connection for bilateral foot disorder have not been met.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017).

6.  The criteria for service connection for a bilateral hip disability have not been met.  38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

7.  The criteria for service connection for sleep apnea have not been met.  38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

8.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  The requirements of the statues and regulation have been met in this case.

Regarding the Veteran's claim for entitlement to service connection for bilateral hip disorder, sleep apnea, and bilateral hearing loss, and claims to reopen entitlement to service connection for bilateral foot disorder, back disorder and bilateral knee disorder, the notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2017).  Compliant VCAA notice was provided in July 2011, January 2013 and March 2014.

With regard to the Veteran's earlier effective date claims, he appealed such matters from the February 2013 rating decision that continued the assigned rating in question for residuals, fracture right fibula and granted service connection for tinnitus.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  
Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  Therefore, as the Veteran has appealed with respect to the initially assigned effective dates for the grant of service connection for tinnitus and the grant of a 10 percent rating for residuals, fracture, right fibula, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

With respect to the timing of VCAA notice, the United States Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120.  In the present case, the RO issued the required VCAA notice prior to the February 2013, June 2013 and September 2014 rating decisions on appeal.  Thus, there is no timing error.

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 (STRs), post-service treatment records, and VA examination reports.

The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of the responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was provided with a meaningful opportunity to participate in the claims process.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits.

The Board will therefore proceed to the merits of the Veteran's appeal.

II. Entitlement to Earlier Effective Date

The Veteran is seeking an earlier effective date for the award of service connection for tinnitus and for award of a 10 percent disability evaluation for fracture, right fibula.

Unless Chapter 38 of the United States Code specifically provides otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  See 38 U.S.C. § 5110(a) (West 2012); 38 C.F.R. § 3.400 (2017).  An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in disability occurred within one year prior to the filing of the claim.  See 38 U.S.C. § 5110(b)(2) (West 2012); 38 C.F.R. § 3.400(o)(2) (2017).  The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a) (West 2012); 38 C.F.R. § 3.400(b)(2)(i) (2017).

A "claim" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1(p) (2017).  "Date of receipt" of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA.  See 38 C.F.R. § 3.1(r) (2017).

Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim.  See 38 C.F.R. § 3.155(b) (2017).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Earlier Effective Date for Entitlement to Service-Connection for Tinnitus

A review of the claims file reveals that VA received the Veteran's informal claim seeking service connection for tinnitus was received on June 8, 2011.

Generally, the effective date for service connection is not based on the date a disability began, but rather on the date of receipt of the claim.  See Lalonde v. West, 12 Vet. App. 377, 382 (1999).

The Veteran asserts he is entitled to an earlier effective date for the award of service connection for tinnitus.

After careful consideration, the Board finds that the entitlement to an earlier effective date for the grant of service connection for tinnitus is not warranted.  No communication was received from the Veteran, his representative or his congressman indicating an intent to claim service connection for this disability prior to June 8, 2011.  The appeal for an earlier effective date for a grant of service connection for this issue must be denied.  See 38 U.S.C. § 5110(a) (West 2012); 38 C.F.R. § 3.400 (2017).  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C. § 5107(b) (West 2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Earlier Effective Date for Increased Evaluation for Fracture, Right Fibula

The Veteran's claim for an increased rating for fracture, right fibula was received on September 21, 2004.

The Veteran underwent a VA bones examination on January 8, 2005.  The examiner noted that the Veteran had pain, but that no shortening of the leg was present.  X-rays revealed a well-healed, distal fibular fracture.  The examiner diagnosed the Veteran with status post distal fibular fracture, well healed and with residual pain.

The Veteran's VA outpatient treatment records dated February 25, 2004, noted complaints of leg pain.  Thus, the RO granted an increased evaluation of 10 percent for fracture, right fibula effective February 25, 2004.

After careful consideration, the Board finds that the entitlement to an earlier effective date for the 10 percent disability evaluation for fracture, right fibula is not warranted.  No communication was received from the Veteran, his representative or his congressman indicating an intent to claim service connection for this disability prior to September 21, 2004.  As the Veteran's outpatient treatment records reflect treatment for complaints of pain on February 25, 2004, which is within one year prior to the filing of his claim for an increased evaluation, the RO assigned an effective date of February 25, 2004 for the award of an increased rating.  See 38 U.S.C. § 5110(b)(2) (West 2012); 38 C.F.R. § 3.400(o)(2) (2017).  The appeal for an earlier effective date for an increased rating must be denied.  See 38 U.S.C. 
§ 5110(a) (West 2012); 38 C.F.R. § 3.400 (2017).  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C. § 5107(b) (West 2012); 38 C.F.R.
§ 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III. New and Material Evidence

Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C. § 5108.

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist.  Id.

VA must review all of the evidence submitted since the last final rating decision to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Back Disorder

The Veteran's claim for service connection for a back disability, to include as secondary to service-connected fracture, right fibula was denied in a November 2007 Board decision, which became final.

After careful review of the evidence of record, the Board finds that new and material evidence sufficient to reopen this previously denied claim for service connection for a back disorder has not been submitted.

Evidence added to the record since the November 2007 Board decision includes private and VA medical treatment records, a medical article, and a May 2015 hearing before a Decision Review Officer.

The recently received medical treatment records reflect the Veteran's history of complaints of chronic back pain.  While this medical evidence is "new" as it was not previously submitted to agency decisionmakers, it is not material because it does not relate to an unestablished fact necessary to substantiate the claim.  Here, the recently received medical treatment records do not relate the Veteran's complaints of chronic back pain to his time in service, or to his service-connected residuals, fracture right fibula.  As the new evidence submitted is not material, the claim for service connection for a back disorder is not reopened, and the current appeal on this issue is denied on that basis.  See 38 U.S.C. § 5108. 

Bilateral Knee Disorder

The Veteran's claim for service connection for a bilateral knee disorder, to include as secondary to service-connected fracture, right fibula was denied in a November 2007 Board decision, which became final.

After careful review of the evidence of record, the Board finds that new and material evidence sufficient to reopen this previously denied claim for service connection for a bilateral knee disorder has not been submitted.

Evidence added to the record since the November 2007 Board decision includes private and VA medical treatment records, a May 2015 hearing before a Decision Review Officer, and a VA examination in February 2013.  The VA examiner noted that imaging studies of the Veteran's knees revealed no arthritis, no evidence of patellar subluxation and no significant diagnostic findings.  The recently received medical treatment records reflect the Veteran's history of complaints of chronic knee pain.  While this medical evidence is "new" as it was not previously submitted to agency decisionmakers, it is not material because it does not relate to an unestablished fact necessary to substantiate the claim.  Here, the recently received medical treatment records do not relate the Veteran's complaints of chronic knee pain to his time in service, or to his service-connected residuals, fracture right fibula.  As the new evidence submitted is not material, the claim for service connection for a bilateral knee disorder is not reopened, and the current appeal on this issue is denied on that basis.  See 38 U.S.C. § 5108.

Bilateral Plantar Fasciitis

The Veteran's claim for service connection for a bilateral plantar fasciitis, to include as secondary to service-connected residuals, fracture right fibula was denied in a February 2014 Board decision, which became final.

After careful review of the evidence of record, the Board finds that new and material evidence sufficient to reopen this previously denied claim for service connection for a bilateral foot disorder has not been submitted.

Evidence added to the record since the February 2014 Board decision includes private and VA medical treatment records, and a May 2015 hearing before a Decision Review Officer.  The recently received medical treatment records reflect the Veteran's history of complaints of foot pain.  While this medical evidence is "new" as it was not previously submitted to agency decisionmakers, it is not material because it does not relate to an unestablished fact necessary to substantiate the claim.  Here, the recently received medical treatment records do not relate the Veteran's complaints of a bilateral foot disorder to his time in service, or to his service-connected residuals, fracture right fibula.  As the new evidence submitted is not material, the claim for service connection for bilateral plantar fasciitis is not reopened, and the current appeal on this issue is denied on that basis.  See 38 U.S.C. § 5108.


IV. Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131.  Service connection may also 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).

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where a chronic disease under section 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. 
§ 3.303(b).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought."  Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013).  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of a link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease [and service] and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. 
§ 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

Bilateral Hip Disorder

The Veteran contends that he has a bilateral hip disorder which is a result of his military service, to include as secondary to his service-connected residuals, right fibula.

The Veteran's service treatment records are silent as to any complaints, treatments or diagnosis of a bilateral hip disability while in service.  The Veteran underwent a VA examination in June 2013.  The Veteran reported he developed hip pain which he believed was due to his service-connected healed right fibular fracture.  He reported that his pain began seven to eight years ago, but was unable to be more specific.  He stated he has not sought medical care for this condition and has no diagnosis.  The examiner did not diagnose any type of hip disorder or disability.  The medical records associated with the electronic file reveal no diagnosis of a hip disorder or disability.

Therefore, the Board finds that the evidence weighs against a finding of a current disability.  There is no current diagnosis on record related to a hip disorder, and the VA examiner found no evidence of a hip disorder.  Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  As such, the Board finds that there the evidence weighs against a finding of a current disability and service connection must therefore be denied.

Sleep Apnea

The Veteran contends that he has sleep apnea which is a result of his military service.

The Veteran submitted a February 2017 letter from his VA sleep physician which stated the Veteran was diagnosed with a sleep disorder upon a study performed in December 2015.

As indicated above, the evidence reflects the Veteran was diagnosed with sleep apnea in 2015, approximately 45 years after his discharge from service; with no competent evidence relating sleep apnea to his active service.

Therefore, the Board finds that service connection for sleep apnea must be denied because the competent evidence of record shows that the Veteran did not experience sleep apnea while in service.

The preponderance of the evidence is therefore against a finding of service connection for sleep apnea and the claim must be denied.  There is no reasonable doubt to be resolved in this case.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990).

Bilateral Hearing Loss

For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection.  38 C.F.R. § 3.385.  "[I]mpaired 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, or 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The requirements of section 3.385 need only be met for the purposes of showing a current "disability" for service connection purposes.  The purpose of section 3.385 is to establish guidelines for determining when a hearing "disability" is present so that service connection may be granted.  It does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service or where hearing loss was shown in service but not to the disabling degree depicted in section 3.385.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for bilateral ear hearing loss is not warranted.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Evidence must show that the Veteran has the disability for which benefits are being claimed.

Here, the evidence of record does not show that the Veteran has a bilateral hearing loss disability in accordance with VA regulations.  The Veteran underwent a VA audiologic examination in January 2013.  Audiometric testing demonstrated pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Avg Hz
RIGHT
15
10
10
20
14
LEFT
20
25
20
25
22

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 98 in the left ear.

Thus, because audiometric testing did not demonstrate an auditory threshold of 40 or more for any of the relevant frequencies, auditory thresholds of 26 or greater for at least 3 of the relevant frequencies, or speech audiometry of less than 94 percent, hearing loss of a disabling level for VA service connection purposes has not been shown.  38 C.F.R. § 3.385.

The Board finds that the evidence does not reflect the existence of a current hearing loss disability as defined by VA regulations.  Therefore, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for service connection for bilateral hearing loss must be denied.  38 U.S.C. § 1110, 38 C.F.R. § 3.303.


ORDER

An effective date earlier than June 8, 2011 for the award of service connection for tinnitus is denied.

An effective date earlier than February 25, 2004 for the 10 percent disability rating for residuals, fracture right fibula is denied.

The application to reopen the claim for service connection for a lumbar spine disability, to include as secondary to service-connected residuals, fracture right fibula is denied.

The application to reopen the claim for service connection for a bilateral knee condition, to include as secondary to service-connected residuals, fracture right fibula is denied.

The application to reopen the claim for service connection for a bilateral foot disability, claimed as plantar fasciitis, to include as secondary to service-connected residuals, fracture right fibula is denied.

Service connection for a bilateral hip disorder is denied.

Service connection for sleep apnea is denied.

Service connection for bilateral hearing loss is denied.


REMAND

While the Board regrets the additional delay, it finds that a remand is necessary to evaluate the Veteran's diabetes mellitus, type II and residuals, fracture right fibula.

The Veteran's outpatient treatment records dated June 29, 2015 indicate the Veteran was prescribed insulin; but it is unclear if the Veteran if the Veteran was prescribed insulin as a matter of course for treatment of his diabetes, or if was a one time occurrence.  The Veteran should be afforded a VA examination to determine the current nature and severity of his diabetes mellitus, type to and to identify the manner of treatment for this disorder.  Additionally, the Board notes that the Veteran has not been afforded a VA examination since May 2014.  Thus, a remand is also necessary to afford the Veteran a contemporaneous VA examination so that the evaluation of his diabetes mellitus will be a fully informed one.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).

The Veteran asserts that his residuals, fracture right fibula has increased in severity and is more disabling than is currently reflected by his 10 percent disability rating.  The Board notes that the Veteran was last afforded a VA knee and leg examination in October 2014.  While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that the examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  Accordingly, the Veteran should be afforded contemporaneous VA examinations which assess the current level of his service-connected disabilities.

Finally, the Board notes that the Veteran has been diagnosed with various psychiatric disorders at different times throughout the appellate period.  The most recent VA examination, conducted in June 2015, diagnosed the Veteran with bipolar disorder and the VA examiner determined that bipolar disorder was not secondary to the Veteran's service-connected residuals, fracture right fibula.  The Board finds that this opinion is inadequate as it did not consider whether or not the Veteran's bipolar disorder is related to active service; nor did the examiner address the various diagnoses the Veteran has had during the course of this appeal.  Generally, 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).  Thus, on remand, a new VA examination and opinion addressing eth Veteran's claims for service connection for an acquired psychiatric disorder is needed.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA treatment records from February 2017 to the present and associate them with the claims file.  Any and all responses, including negative responses, must be properly documented in the electronic file, as well as any notification to the Veteran as to any records deemed unavailable.

2.  Provide the Veteran an opportunity to submit any outstanding, relevant, private treatment records, relating to his diabetes mellitus type II, residuals fracture right fibula and any records relating to treatment for any psychiatric disability.  Provide the Veteran with the appropriate authorization for release form(s).

For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records.  All attempts made must be documented in the electronic file, to include the unavailability of any identified records.  For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly.

3.  After completing the above development, schedule the Veteran for a VA examination to determine the current nature and severity of his diabetes mellitus, type II.  The Veteran's electronic file should be made available to the examiner for review.  Any indicated diagnostic tests and studies should be performed and the results should be reported in detail.  The examiner should specifically comment on whether the Veteran currently takes insulin for his diabetes, and if so, when the Veteran began taking insulin.

4.  After completing the above development, schedule the Veteran for a VA examination to determine the current nature and severity of his residuals, fracture right fibula.  The Veteran's electronic file should be made available to the examiner for review.  Any indicated diagnostic tests and studies should be performed and the results should be reported in detail.

5.  After the development above has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed psychiatric disability.  The electronic file must be reviewed on conjunction with the claim.  All testing deemed necessary must be conducted and results reported in detail.

The examiner must provide the following:
a) Identify all current psychiatric disorders.  In identifying all such psychiatric disorders, please consider all medical and lay evidence associated with the electronic file.  For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed.  If the Veteran no longer carries a diagnosis for a psychiatric disability for which he was previously diagnosed, the examiner must explain why the diagnosis is no longer applicable.  If a diagnosis has resolved, the examiner must explain when it resolved and if it was related to service in any way.  If a diagnosis was made in error, an explanation must be provided.

b) For each identified psychiatric disability, state whether it is at least as likely as not (50 percent probability or greater) that it was incurred in service, or is otherwise related to service.  Please explain why or why not.

c) Is it at least as likely as not (50 percent probability or greater) that any identified psychiatric disorder is caused by the Veteran's service-connected residuals, fracture right fibula?  Please explain why or why not.

d) If not directly caused by the service connected disability, is it at least as likely as not that the Veteran has an acquired psychiatric disorder that is permanently worsened beyond normal progression (aggravated) by either his service-connected residuals, fracture right fibula?  Please explain why or why not.

e) If the Veteran has an acquired psychiatric disorder, to chronic adjustment disorder, that is permanently worsened beyond normal progression (aggravated) by either his service-connected residuals, fracture right fibula the examiner should attempt to define the baseline level of such disability and the degree of permanent worsening of such disability that is attributable to the service-connected disability.

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.

A discussion of the underlying reasons for all opinions expressed must be included in the examiner's report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate.

If the examiner is unable to provide an opinion without resorting to mere speculation, (s)he must provide an explanation for the basis of that determination.

6.  Then, readjudicate the appeal.  If the benefits sought are not granted in full, furnish the Veteran and his representative a supplemental statement of the case and, after allowing the appropriate period of time for response, 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).


The claims 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).




______________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs