Citation Nr: 1803768	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  03-12 092A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss.

2.  Entitlement to service connection for cardiovascular disorder other than hypertension, to specifically include coronary artery disease.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for an upper gastrointestinal tract disorder, to include gastroesophageal disorder (GERD), hiatal hernia with esophagitis and chronic reflux.

5.  Entitlement to service connection for a lower gastrointestinal tract disorder, to include gallbladder and pancreatic disorder (claimed as gallbladder polyps and inflammation of pancreas (pancreatitis)).

6.  Entitlement to service connection for an eye disorder, claimed as presbyopia, refractive error, hypermetropia, and residuals of a conjunctival hemorrhage with left eye vision loss, to include as secondary to an upper gastrointestinal tract disorder. 

7.  Entitlement to service connection for sleep apnea, to include as secondary to an upper gastrointestinal tract disorder.

8.  Entitlement to service connection for surgical scars located on the chest, stomach, and left lower extremity, to include as secondary to disorders of the cervical and lumbar spine, left knee, and upper gastrointestinal tract.

9.  Entitlement to service connection for a left foot disorder with arthritis (claimed as heel spurs), to include as secondary to onychomycosis.

10. Entitlement to service connection for bilateral hammertoes, to include as secondary to onychomycosis.

11.  Entitlement to service connection for muscle and joint disorders of the left wrist, left thumb, right wrist, right elbow, left hip, right hip, and right knee, to include myalgia, myositis and arthralgia. 

12.  Entitlement to service connection for a headache disorder.


REPRESENTATION

Appellant represented by:	Ronald C. Sykstus, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. R. Fletcher
INTRODUCTION

The Veteran served on active duty from February 1983 to January 1987, with additional periods of service, including active duty for training (ACDUTRA), in the Alabama Army National Guard. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision that denied the Veteran's bilateral hammertoes claim, a November 2007 rating decision that denied the Veteran's left foot claim, and a June 2010 rating decision that denied the Veteran's remaining claims on appeal.

Following the issuance of the March 2005 and November 2007 rating decisions, but prior to the June 2010 rating decision, the Veteran testified at a November 2008 Travel Board hearing in support of his bilateral hammertoes claim.  Thereafter, in February 2009, the Veterans Law Judge (VLJ) who had presided over the Travel Board hearing remanded this issue for additional development.  Before the requested development could be completed, however, that VLJ retired from the Board.  Under such circumstances, the Board's standard practice is to send a notice letter advising the Veteran of his right to an additional hearing before a different VLJ.  See 38 U.S.C. § 7107(b) (2002) (due process requires that a VLJ who conducts a hearing on appeal participate in any subsequent decision regarding that appeal).  However, in this case, the Veteran was provided the requisite hearing-clarification notice at a subsequent Board proceeding, which was conducted via videoconference by the undersigned. 38 U.S.C. § 7107(c), (e)(2) (2002).  During that December 2012 hearing, the Veteran elected to submit additional testimony with respect to the hammertoes claim.  He also testified in connection with the other above-captioned issues. 

These issues were before the Board in June 2013 when they were remanded for additional development.

The left ear hearing loss issue is decided below.  The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT

A left ear hearing loss disability for VA purposes has not been presented during the pendency of this claim.


CONCLUSION OF LAW

Hearing loss disability of the left ear was not incurred in or aggravated by active military service, and sensorineural hearing loss of the left ear may not be presumed to have been so incurred.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154(a) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.159 , 3.326(a).  Regarding the issue decided herein, VA's duty to notify was satisfied by a letter issued in January 2010.  See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159.  Neither the Veteran nor his attorney has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board. 

The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that available service treatment records (STRs) and post-service treatment records, including VA treatment records and private records, were obtained.  Neither the Veteran nor his attorney has identified any available, outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. 

The Veteran has been afforded an appropriate VA examination to determine the existence and etiology of his claimed left ear hearing loss disability.  As discussed in more detail below, the VA opinion is adequate, as they were predicated on a full reading of the Veteran's medical records in the claims file, including the STRs, considered the lay statements of the Veteran, and provided a rationale for the opinion stated.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

As VA's duties to notify and assist are met, the Board will address the merits of the claim.

II.  Service Connection for Left Ear Hearing Loss Disability

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 

Service connection may also be granted for an organic disease of the nervous system (sensorineural hearing loss) when it is manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Id.  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013).  A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed.  Id.  

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

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, or 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.

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability."  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Veteran maintains that he has hearing loss disability of the left ear related to noise exposure for his service in a field artillery unit.  Moreover, the Veteran has indicated that, while serving in the military occupational specialty (MOS) of communications specialist, he worked in close proximity to the firing range.  See January 2013 videoconference hearing transcript.

The Veteran's service personnel records confirm his service in the 177th Field Artillery and his MOS of communications specialist.  STRs (including audiometric test results recorded in November 1982, July 1983, April 1985, May 2005 and September 2008) are silent for complaints or findings of left ear hearing loss disability (as defined in 38 C.F.R. § 3.385).  

Following service, the Veteran submitted a claim of service connection in February 2009. 

VA and private examination reports and treatment records are silent for findings of left ear hearing loss disability.  Notably, a September 2017 VA examination report notes the Veteran's history of noise exposure in service from artillery, aircraft, heavy equipment, weapons, music, and explosives.  He also reported post-service noise exposure from lawn equipment, music power tools and factory noise.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
15
10
15
30
35

Speech audiometry revealed speech recognition ability of 96 percent in the left ear.  The examiner opined that while hearing thresholds shifted in service, there is no left ear hearing loss per VA criteria.

Even conceding that the Veteran was exposed to noise from artillery in service, the evidence does not show any left ear hearing loss disability (as defined by 38 C.F.R. § 3.385) in service.  There is also no evidence that the Veteran has been diagnosed with a left ear hearing loss disability by VA standards at any point since service.  Rather significantly, audiometric testing during the 2017 VA examination showed normal hearing in the left ear for VA purposes.  The Veteran has not presented or identified existing audiometric testing results that meet the requirements of that regulation, and there is no competent medical evidence showing that he meets the criteria for a diagnosis of 38 C.F.R. § 3.385; McClain v. Nicholson, 21 Vet. App. 319 (2007).  Therefore, the Board concludes that the preponderance of the medical evidence establishes that left ear hearing loss disability has not been present at any time during the pendency of this claim.  Thus, there is no valid claim of service connection for such disability.  See Brammer, supra. 

Consideration has been given to the Veteran's own statements that he has left ear hearing loss disability.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, sensorineural hearing loss falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Hearing loss (for VA purposes) is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that audiometric testing and other specific findings are needed to properly assess and diagnose the disorder.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

That is, although the Board readily acknowledges that Veteran is competent to report diminished hearing, there is no indication that the Veteran is competent to render a diagnosis of sensorineural hearing loss disability for VA purposes.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating hearing disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  Accordingly, this lay evidence does not constitute competent or credible evidence and lacks probative value.

 As the Veteran has not shown a current disability for which service connection can be granted, the claim must be denied.  The Board has duly considered the benefit of the doubt doctrine.  38 U.S.C. § 5107; see also Gilbert, supra.  However, the preponderance of the evidence is against the Veteran's claim.  As such, that doctrine is not applicable in the instant appeal and his claim must be denied.


ORDER

Service connection for left ear hearing loss disability is denied.


REMAND

Unfortunately, remand is required for the remaining issues.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

The June 2013 remand directed the AOJ to verify the exact periods of the Veteran's National Guard service from 1988 until his retirement in April 2009, including his specific dates of ACDUTRA.  The AOJ was also directed to obtain a complete copy of his service treatment records from the Veteran's National Guard unit (HHC 279th Signal Battalion) or from any other appropriate sources such as the National Personnel Records Center (NPRC) or the State Adjutant General for the Army National Guard unit in Alabama.  While the NPRC was contacted in September 2016 and March 2017, no records were located and it was suggested that additional requests be made to the Records Management Center (RMC), Code 7, and PIES Request Code S02-V.  It is unclear from the record whether these follow-up requests were made.  Moreover, there is no evidence that the AOJ ever contacted the Veteran's National Guard unit or the State Adjutant General for the Army National Guard unit in Alabama.  A more thorough attempt to locate the Veteran's records and verify his dates of service should be made on remand.

Moreover, regarding the claim of entitlement to service connection muscle and joint disorders of the left wrist, left thumb, right wrist, right elbow, left hip, right hip, and right knee, to include myalgia, myositis and arthralgia, remand is required for a VA examination.  (While the June 2013 Board remand discusses the need for such an examination, the indented action paragraphs of the remand does not direct that such an examination be conducted, and unfortunately the AOJ did not provide the Veteran with such an examination.)  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  See 38 U.S.C. § 5103A (2002); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).   Here, the Veteran has essentially contended that these conditions arose in service and have persisted on an ongoing basis since that time.  Accordingly, a VA examination is required.

Accordingly, the case is REMANDED for the following actions:

1.  Contact the National Personnel Records Center, the State Adjutant General for the Alabama Army National Guard, or another appropriate service department and request verification of the specific dates of the Veteran's service, to include all periods of active and inactive duty training, in the Alabama Army National Guard.  A copy of the Veteran's entire Alabama National Guard personnel file should also be requested and obtained. 

If it is determined that any of the above records or information does not exist and that further search efforts would be futile, a formal finding of unavailability should be entered pursuant to 38 C.F.R. § 3.159(c)(2).  The Veteran should duly notified of any such formal finding and be given an opportunity to respond

2.  After any additional records are associated with the claims file, afford the Veteran an appropriate VA examination to determine the etiology of his current upper and lower extremity muscle and joint disorders (including myalgia, myositis and arthralgia).  The entire claims file must be made available to and be reviewed by the examiner.  All necessary tests should be completed.  An explanation for all opinions expressed must be provided. 

The examiner must provide the following opinion: 

Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's upper and lower extremity muscle and joint disorders (including myalgia, myositis and arthralgia) had its onset in, or is otherwise caused by, a period of active service, active duty for training, or inactive duty for training. The examiner must address the Veteran's statements that this disability has persisted since service.

The examiner must explain the rationale for any opinion given.  If the examiner is unable to provide an opinion without resorting to speculation, he/she should so state and provide an explanation as to the reason(s) therefor.

3.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney.  The Veteran and his attorney must be provided an adequate opportunity to respond.  Thereafter, the case should be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  See 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 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. §§ 5109B, 7112 (2002).




______________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs