Citation Nr: 1807449 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-13 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Evaluation in excess of 10 percent for disc disease lumbar spine (back disability). 4. Evaluation in excess of 10 percent for patellar tendonitis, right knee. 5. Evaluation in excess of 10 percent for patellar tendonitis, left knee. 6. Entitlement to a compensable rating for melanoma (skin cancer). REPRESENTATION Appellant represented by: John Dorrity, Agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from September 1998 to September 2002 and from February 2003 to June 2003, and from June 2004 to August 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and a July 2012 rating decision issued by the RO in Newark, New Jersey. Jurisdiction is currently with the RO in Newark, New Jersey. In September 2017, the Veteran provided testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The issues of entitlement to an increased rating for a back disability, right knee tendinitis, left knee tendinitis, and melanoma are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a hearing disability related to his active military service. 2. Tinnitus is related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss of the left ear have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). In this appeal, the Board finds the letter dated in December 2010 before the March 2011 rating decision and the letter dated in March 2012 before the June 2012 rating decision provided the Veteran with notice that fulfills the provisions of 38 U.S.C. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letters, the rating decisions, and the statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Moreover, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfills two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the September 2017 Board hearing, the Veteran was assisted at the hearing by his representative. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence to include his service treatment records (STR), private treatment records, and VA treatment records. VA also provided the Veteran with several VA examinations to determine the nature and etiology of the Veteran's disabilities in January 2011 and June 2012 . Moreover, the Board finds that the opinions provided by the VA examiners are adequate to adjudicate the claims because they were provided after a review of the record on appeal, referred to a detailed medical history from the Veteran, and after the Veteran was examined, the examiners provided opinions as to the diagnosis and origin of his claimed disabilities, which was based on citations to the relevant evidence found in the claims file. Therefore, the record is now sufficient to decide the claim. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007). Lastly, neither the Veteran nor his representative has argued that any prejudice results from the assistance provided for this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, (U.S. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the VBMS and virtual VA claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran 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 the claim and what the evidence in the Veteran's claim's folders show, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. The Claims The Veteran contends that his left ear hearing loss and tinnitus are a result of his duties while serving in the Coast Guard. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired 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. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). 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). In order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). A. Service Connection for Left Ear Hearing Loss As to the claim for service connection for hearing loss, the threshold question that must be addressed is whether the Veteran actually has the disability for which service connection is sought; specifically hearing loss. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As to a current diagnosis, the Veteran has not been diagnosed with hearing loss and has been found to have normal hearing in his left ear. See June 2012 VA examination. As to the in-service incurrence, the Veteran reported that he was exposed to loud noises when he was working on large diesel engines and when he was shooting service weapons for training. See August 2012 Statement in Support of Claim. Initially, the Board has reviewed the Veteran's service treatment records and the Board notes that there were no signs or symptoms of hearing loss while in service. In fact, the Veteran's separation physical was silent for a hearing loss disability. See Separation Physical July 28, 2010. As to the Veteran's lay statements, the Veteran testified that he noticed a problem with his hearing while he was still on active duty. See September 2017 Hearing Transcript. The Board finds that the Veteran is considered competent to report on observable problems, such as hearing loss, because this symptom is observable by a lay person. See Kahana, supra. However, the Board also finds that the Veteran is not competent to provide a medical opinion as to the origins of his present disability because such an opinion requires medical expertise which they do not have. As such, the Board places little probative weight on the Veteran's statements because they are not supported by the medical evidence contained in the record and he does not have the medical expertise to provide a diagnosis for his claimed disability. See Davidson, supra; Kahana, supra. Turning to the medical evidence at hand, the Veteran attended a private medical examination for his hearing in 2009. The treatment note indicated that the Veteran was assessed with "sensorineural hearing NOS" and the doctor indicated that he had "a small shooter's noise notch.' See August 24, 2009 Private Treatment Note. The doctor also indicated that the Veteran has "had no decrease in his hearing" and that "the patient's hearing is grossly normal." See August 24, 2009 Private Treatment Note. The Board is unable to place any probative weight on this medical opinion. The Board has reached this conclusion because this record contained conflicting information without any discussion or analysis. Specifically, the record indicated that the Veteran had no decrease in his hearing and grossly normal hearing but the doctor still diagnosed him with a "shooter's notch" and "sensorineural hearing NOS." Moreover, this treatment note did not contain any information regarding the audio testing that was performed on the Veteran to support the doctor's conclusions. Thus, for the above stated reasons, the Board places little if any probative weight on this treatment note. Davidson, supra; Bloom, supra. Moreover, the Veteran was later afforded two VA examinations in regards to his hearing disability. In January 2011, the Veteran attended an examination and reported that he was exposed to jet engines, helicopters, small arms fire, and boat engines while in the service. The Veteran was given an audio examination and the results of that test indicated that the Veteran did not have hearing loss and his speech recognition score for his left ear was 94 percent. See January 2011 VA examination. Following the examination, the examiner indicated that the Veteran did not have hearing loss and that he was "clinically normal." See January 2011 VA examination. Subsequently, the Veteran attended another examination in June 2012. At that examination, the Veteran was given another audio examination and that test indicated once again that the Veteran had normal hearing and his speech recognition score for his left ear was 100 percent. The examiner reported that the Veteran's hearing loss was not caused by or a result of an event of an event in the military. The examiner stated that he examined the Veteran's induction hearing test from 1997 and there is no hearing loss in either examination and there is no significant threshold shift (15db or greater) at any frequency. See June 2012 VA examination. The examiner added that "today's results are also consistent with audiometric data from 2002 and from a C&P examination performed at the Gainesville, FL VAMC in 2011." The examiner further opined that "there is a narrative medical report that alluded to a "shooter's notch" but the referred audiogram was not located. A "shooter's notch" refers to the drop in thresholds at 4000Hz that is typical for noise exposure, and no such notch was evident in the audiometric data observed today." See June 2012 VA examination. The examiner concluded by stating that "any shift in thresholds taken at another time would therefore be reflective of a temporary threshold shift, rather than a permanent one, since no significant shift in thresholds is observed between 1997 and today." See June 2012 VA examination. The Board finds these VA examinations to be highly probative pieces of evidence in regards to the nature and etiology of the Veteran's claimed disability. The Board has reached this conclusion because the examiners reviewed the Veteran's medical history, interviewed the Veteran, and examined him before they rendered an opinion. Accordingly, the Board has placed significant weight on those evaluations. Davidson, supra. In sum, the Board finds that the most probative pieces of evidence demonstrate that the Veteran does not have a diagnosis for left ear hearing loss at any time during the pendency of the appeal. In reaching this conclusion, the Board has considered the Veteran's lay statements and the available medical information contained in the Veteran's claims file and finds that the VA examiners' opinions are the most probative pieces of evidence. Accordingly, because a condition precedent for establishing service connection for a claimed disability is the diagnosis of the disability at any time during the pendency of the claim on appeal and this Veteran does not have such a diagnosis, the Board has no alternative but to conclude that entitlement to service connection for a left ear hearing loss disability must be denied because the weight of the evidence is against the claim. See 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(d), 3.309. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for a left ear hearing loss disability, must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. Tinnitus As to a current diagnosis, the Veteran has been diagnosed with tinnitus. See June 2012 VA examination. As to the in-service incurrence, the Veteran reported that he was exposed to loud noises when he was working on large diesel engines and when he was shooting service weapons for training. See August 2012 Statement in Support of Claim. Initially, the Board has reviewed the Veteran's service treatment records and the Board notes that there were no signs or symptoms of tinnitus while in service. In fact, the Veteran's separation physical was silent for tinnitus. See Separation Physical July 28, 2010. However, as to the Veteran's lay statements, the Veteran testified that he noticed a problem with his hearing and ringing in his ears while he was still on active duty. See September 2017 Hearing Transcript. The Veteran also attended a VA examination in June 2012 to determine the nature and etiology of his tinnitus. At this examination, the examiner indicated that the Veteran reported that there was "no specific date of onset" for his tinnitus, which is not necessarily inconsistent with his hearing testimony, i.e., the Veteran indicates that it began in service but does not give a date. Thus, while the examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure, the Board finds that the basis of the opinion is on the lack of evidence of noise-induced hearing loss (there is, it's just not sufficient for VA benefits purposes) and the type of tinnitus the Veteran describes. In addition, although the opinion provided by this VA examiner is not contradicted by any other medical evidence of record, since tinnitus is subjective in nature and the June 2012 VA examiner's opinion is substantially based on selective statements from the Veteran's examination interview, the Board finds that it is of limited probative value. Therefore, given the subjective nature of tinnitus, and the fact that the Board does not find the examiner's statements any more persuasive than those of the Veteran, the Board will give the Veteran the benefit of the doubt, and the conclude that the Veteran's diagnosed tinnitus is related to his exposure to noise during service. ORDER Entitlement to service connection for left ear hearing loss, is denied. Entitlement to service connection for tinnitus, is granted. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. As to the issues on appeal, a review of the record indicates that the Veteran last received an examination for his melanoma in September 2013. The record also reflects that the Veteran's back disability and bilateral knee disabilities were last evaluated in January 2011. The Board finds that these examinations are too old to properly evaluate the Veteran's current disabilities. Moreover, the Veteran has testified that his disabilities have worsened since he was last examined. The Veteran's lay statements and the new evidence that he has submitted raise the possibility that his conditions may have worsened since he was last examined. Accordingly, VA's duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). See also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Thus, the Board finds a remand is necessary to afford the Veteran contemporaneous examinations to determine the current severity of his disabilities. While the appeal is remand status, the AOJ should also obtain and associate with the record any outstanding VA treatment records. See 38 U.S.C. § 5103A(d) (2012). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's contemporaneous VA treatment records from September 3, 2013 to the present. 2. After obtaining authorizations from the Veteran, associate with the claims file his contemporaneous private treatment records from January 23, 2014, to the present. 3. Schedule the Veteran for a VA examination to determine the current severity of his back disability and his left and right knee disabilities. The claims file should be made available to and reviewed by the examiner. (A). Full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. (B). In the event that that the Veteran reports that his disabilities result in flare-ups, the examiner should request the Veteran to identify the extent of his functional loss during a flare-up and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. 4. Schedule the Veteran for an examination to determine the current severity of his melanoma. The claims file should be made available to and reviewed by the examiner. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms she has experienced. The VA examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Then readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and their representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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 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 (2012). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs