Citation Nr: 1808859 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 16-41 437 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to December 1957. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2013 rating decision, in which the RO denied service connection for bilateral hearing loss, tinnitus, and low back disability. In September 2013, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2016 and August 2016. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2016 and September 2016. Also, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Board's decision addressing the claim for service connection for a low back disability is set forth below. The remaining claims for service connection for bilateral hearing loss and tinnitus are addressed in the remand following the order; this matter is being remanded to the AOJ, VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate claim being decided herein decided have been accomplished. 2. The Veteran does not currently have, and at no point pertinent to the claim on appeal has had, a low back disability or persistent or recurrent symptoms thereof. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b)). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a September 2012 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claims for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA, along with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. Thus, this letters meets the VCAA's content of notice and timing of notice requirements. The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop each claim herein decided, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to each claim. Pertinent medical evidence associated with the claims file consists of the service treatment records, identified private treatment records, and VA treatment records. The Veteran has not identified any additional records that are relevant to either claim herein decided. The Board finds that no additional AOJ action to further develop the record in connection with any claim, prior to appellate consideration, is required. The Board acknowledges that the Veteran has not been afforded a VA examination with regard to his claimed low back disability. However, as explained in greater detail below, the evidence of record fails to trigger VA's duty to assist by providing a VA examination, even pursuant to the low standard set forth in McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of these claims. As such, the Veteran is not prejudiced by the Board proceeding to a decision on each claim, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from 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). In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In this case, the evidence does not reflect that the Veteran has a low back disability or persistent or recurrent symptoms of low back disability. A June 1957 service treatment record (STR) notes that the Veteran had tenderness over his lumbosacral area. However, no diagnosis was made. In the December 1957 separation exam, the Veteran's spine was noted as normal. The Veteran's STRs are silent for any other complaints or low back injury or disability. Further, the Veteran's private and VA treatment records are silent for any complaints, treatments, or diagnoses of a low back injury or low back disability. A February 2012 VA treatment record provides a current list of Veteran's medication, which did not include any medication for a low back disability. Additionally, the Veteran has not reported any low back injury he may have suffered during service or indicated that he had low back symptoms since service. Further, there is no evidence of a current diagnosis of a low back disability. A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"). The question of whether symptoms such as pain could constitute a disability for purposes of the VA compensation laws and regulations is one that the courts have not definitively answered. See Joyner v. McDonald, 766 F.3d 1393, 1396, n. 1 (Fed. Cir. 2014) (specifically declining to reach the question of whether pain alone can constitute a disability under 38 U.S.C.A. §§ 1110 and 1131); Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) ("Mr. Sanchez-Benitez presents an interesting, indeed perplexing, question, but not one that we need or can decide in this appeal"). However, in Sanchez-Benitez, the Federal Circuit held that, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove the existence of disability that has resulted from a disease or injury that occurred in service. Id. at 1361-1362. Thus, a claim based on "pain alone" fails "when there is no sufficient factual showing that the pain derives from an in-service disease or injury." The issue of whether pain alone can constitute disability for VA compensation purposes, and more generally the nature of the current disability requirement, is currently before the Federal Circuit. See Saunders v. Shulkin, No. 17-1466 (Notice of Docketing filed Jan. 1, 2017). In this case, however, the above evidence reflects that there is neither a diagnosed low back disorder nor low back symptoms that could indicate the presence of such a disorder. VA must provide an examination with regard to claims for disability compensation when there is competent evidence of a disability, or persistent or recurrent symptoms of a disability, that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In Bardwell v. Shinseki, 24 Vet. App. 36, 39 (2010), the Court noted that there must be competent evidence of a current disability or persistent or recurrent symptoms thereof. There is no lay or medical evidence in this case that the Veteran has suffered persistent or recurrent symptoms of low back disability. The only treatment that the Veteran indicated regarding his low back in the July 2012 application for compensation (VA Form 21-526) is in the STRs. To the extent that the Veteran implicitly asserts that he has a low back disability due to disease or injury in service, such an assertion warrants neither service connection nor a VA examination. Under the VCAA, VA must provide an examination when there is (A) competent evidence of a current disability (or persistent or recurrent symptoms thereof) that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be competent evidence of a current disability, competent evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The evidence in this case contains at most a conclusory generalized lay statement suggesting a nexus between a current low back disability and service. Therefore, neither service connection nor a VA examination as to the etiology of any low back disability is warranted. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a low back disability. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is denied. REMAND The Board's review of the claims file reveals that further AOJ action with regard to the claims for service connection for hearing loss and tinnitus is warranted. The Veteran alleges that he was exposed to loud noises during service. In a July 2016 statement from Mr. G.S., he described that he served in the same squadron as the Veteran and both his and the Veteran's primary duty was to start the engines of anti-submarine equipped aircrafts. He stated that they checked the instruments while the engines were operating to determine operational safety. In a September 2013 statement by the Veteran, he stated that he was not given any hearing protection for the noisy work he did during service. The Board notes, that audiological testing was not performed during the Veteran's December 1957 separation exam during service. Post-service, a November 2016 private treatment record indicates that the Veteran has been diagnosed with bilateral hearing loss. See 38 C.F.R. § 3.385 (providing the criteria for a diagnosis of hearing loss for VA purposes). Pursuant to VA's duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) established that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service. 38 C.F.R. § 3.159 (2016). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims noted that the third prong of 38 C.F.R. § 3.159 (c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the Veteran's military service, is a low threshold. McLendon, 20 Vet. App. at 83. To date, no VA examination has been conducted or medical opinion otherwise sought on the matters of whether the Veteran experienced hearing loss or tinnitus due to the alleged in-service noise exposure. As noted above, however, he Veteran has reported in-service exposure to loud engine noise and a possible association between his hearing loss and tinnitus and this in-service noise exposure. In light of above, the Board finds that the threshold requirements discussed in McLendon are met, thus warranting examination and opinion to fulfill the duty to assist. See Charles v. Principi, 16Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). In doing so, the Board concludes that, in order to fulfill the duty to assist in providing a complete and adequate examination under the circumstances of this case, the examination should reflect review of the entire claims file and should provide an opinion addressing what relationship, if any, possible bilateral hearing loss and tinnitus have to his active military service. Accordingly, the claims for service connection for bilateral hearing loss and tinnitus are REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, current authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) records. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA audiological examination. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. Following examination of the Veteran, and consideration of his documented medical history and assertions, the physician should render a medical opinion, consistent with sound medical principles, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hearing loss and tinnitus are a result of the alleged in-service noise exposure? In addressing the above, the physician must consider and discuss all pertinent in- and post-service and other evidence, including the Veteran's lay statements. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal in light of all pertinent evidence and legal authority. 4. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this remand is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs