judge_norm: THERESA M CATINO

condition: knee

text:
Citation Nr: 1106000
Decision Date: 02/14/11    Archive Date: 02/28/11

DOCKET NO.  09-49 088	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South
Carolina

THE ISSUE

Entitlement to service connection for a left knee disability.

ATTORNEY FOR THE BOARD

P. Johnson, Law Clerk

INTRODUCTION

The Veteran served on active duty from August 1979 to August
1992.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from May 2009 rating action by the Department of
Veterans Affairs (VA) Regional Office (RO) in Columbia, South
Carolina.

FINDING OF FACT

A left knee disability was not shown during active duty or until
many years thereafter and has not been found to be related to
such service.

CONCLUSION OF LAW

A left knee disability was not incurred in or aggravated by
active military service.  38 U.S.C.A. �� 1110, 1131, 5107 (West
2002); 38 C.F.R. � 3.303 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record.  See 38 U.S.C.A. �
7104(a) (West 2002).  When there is an approximate balance of
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.  See 38
U.S.C.A. � 5107 (West 2002); 38 C.F.R. � 3.102 (2010).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United
States Court of Appeals for Veterans Claims (the Court) stated
that "a veteran need only demonstrate that there is an
'approximate balance of positive and negative

evidence' in order to prevail."  To deny a claim on its merits,
the preponderance of the evidence must be against the claim.  See
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1
Vet. App. at 54.

Initially, the Board notes that it has reviewed all of the
evidence in the claims file.  Although the Board has an
obligation to provide adequate reasons and bases supporting this
decision, there is no requirement that the evidence submitted by
the Veteran or obtained on his behalf be discussed in detail.
Rather, the Board's analysis will focus specifically on what
evidence is needed to substantiate the issue adjudicated herein
and what the evidence in the claims file shows, or fails to show,
with respect to the claim adjudicated herein.  See Gonzales v.
West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v.
Gober, 14 Vet. App. 122, 128-30 (2000).

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate claims for VA benefits.  The VCAA also redefines the
obligations of VA with respect to its statutory duty to assist
claimants in the development of their claims.  38 U.S.C.A. ��
5103, 5103A (West 2002).

Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his or
her representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.  38
U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. � 3.159(b) (2010);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA
notice must inform the claimant of any information and evidence
not of record (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; and (3) that the claimant is
expected to provide.  VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).

In March 2006, the Court issued its decision in the consolidated
appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Court in Dingess held that the VCAA notice requirements of 38
U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b) apply to all five
elements of a "service connection" claim.  As previously
defined by the courts, those five elements include: (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 of the disability.  Upon
receipt of an application for "service connection," therefore,
VA is required to review the information and the evidence
presented with the claim and to provide the claimant with notice
of what information and evidence not previously provided, if any,
will assist in substantiating or is necessary to substantiate the
elements of the claim as reasonably contemplated by the
application.  This includes notice that a disability rating and
an effective date for the award of benefits will be assigned if
service connection is awarded.

In the present case, VA issued a VCAA notice letter to the
Veteran in August 2008.  This letter informed the Veteran of what
evidence was required to substantiate his service connection
claim and of his and VA's respective duties for obtaining
evidence.  This letter also informed the Veteran as to the law
pertaining to the assignment of a disability rating and effective
date as the Court required in Dingess.

In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary to
substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim.  The law provides that the assistance
provided by VA shall include providing a medical examination or
obtaining a medical opinion when such an examination or opinion
is necessary to make a decision on the claim.  An examination is
deemed "necessary" if the record does not contain sufficient
medical evidence for VA to make a decision on the claim.  See
38 U.S.C.A. � 5103A (West 2002); 38 C.F.R. � 3.159 (2010).

The Board finds that reasonable efforts have been made to assist
the Veteran in obtaining evidence necessary to substantiate his
claim, and that there is no

reasonable possibility that further assistance would aid in
substantiating such claim.  In particular, the record contains
the Veteran's service treatment records, service personnel
records, VA outpatient medical records, statements from the
Veteran, and a VA examination report.

The Board has carefully reviewed the Veteran's statements and
concludes that he has not identified further evidence not already
of record.  The Board has also reviewed the medical records for
references to additional treatment reports not of record, but has
found nothing to suggest that there is any outstanding evidence
with respect to the Veteran's claim.

As the Board will discuss in detail in its analysis below, the
Veteran was provided with a VA examination in May 2009.  The
report of this examination reflects that the examiner reviewed
the Veteran's past medical history, recorded his current
complaints, conducted an appropriate physical examination and
rendered an appropriate diagnosis and opinion consistent with the
remainder of the evidence of record.  Supporting rationale was
also provided for the opinion proffered.  See Barr v. Nicholson,
21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App.
295 (2008).  The Board therefore concludes that the examination
is adequate for adjudication purposes.  See 38 C.F.R. � 4.2
(2010).

Based on the foregoing, the Board finds that all relevant facts
have been properly and sufficiently developed in this appeal and
that no further development is required to comply with the duty
to assist the Veteran in developing the facts pertinent to his
claim.  Essentially, all available evidence that could
substantiate the claim has been obtained. There is no indication
in the file that there are additional relevant records that have
not yet been obtained.

All appropriate due process concerns have been satisfied.  38
C.F.R. � 3.103 (2010).  The Veteran has been accorded the
opportunity to present evidence and argument in support of his
claim.  He has declined to exercise her option of a personal
hearing.  Thus, the Board will proceed to a decision.

II.  Analysis

In general, service connection may be granted for disability or
injury incurred in or aggravated by active military service.  38
U.S.C.A. �� 1110, 1131 (West 2002).  Service connection may also
be granted for any injury or disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in service.
See 38 C.F.R. � 3.303(d) (2010).

In order to establish service connection for the claimed
disorder, there must be (1) competent and credible 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) competent and credible 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);
see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14,
2009), 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 these requirements 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).

With respect to the first Hickson element, the Veteran has been
diagnosed with mild left chondromalacia and left medial meniscal
derangement.  See the May 2009 VA examination report.  A current
disability thus has been demonstrated.

With respect to the second Hickson element, the Veteran stated
that he injured his left knee while playing basketball at Camp
Shelby in Mississippi in June 1986.  Specifically, the Veteran
stated that he went up to block a shot and he lost his balance in
the air and landed with all his weight on his left knee.  See
Veteran statement from June 18, 1986.  Following an investigation
of the accident, a July 1986 report found that the Veteran had
dislocated his left patella and that the injury had occurred in
the line of duty.  Accordingly, the second Hickson element has
been demonstrated.

With respect to the third Hickson element, the Veteran was
provided with a VA examination in May 2009.  After reviewing the
Veteran's claims folder and examining the Veteran, the VA
examiner diagnosed the Veteran with left mild chondromalacia and
left medial meniscal derangement of the knee.  While the examiner
acknowledged the Veteran's in-service knee injury, the examiner
determined that the Veteran's onset of chondromalacia "is
extremely common" and would not be related to the Veteran's 1986
patella injury.  The examiner also noted that the medial meniscal
derangement is not directly linked to the "acute self-limiting
injury in 1986."  The examiner explained that his opinion was
based upon the Veteran's service medical records and that there
was no evidence that the Veteran had made any pertinent
complaints or sought any continuing relevant treatment after his
injury had healed.  It was explained that in August 1986 the
Veteran noted that his left knee had improved and that he was put
on light duty for only a short term.

In addition, the Board notes that the May 2009 VA examiner's
opinion is consistent with the evidence of record.  Specifically,
at a March 1991 examination, the examiner found that the Veteran
was in good health.  No knee disability was noted at that time.
Furthermore, an August 1986 examination taken after the Veteran's
June 1986 basketball accident indicated that his symptoms had
improved and that he had stated that he "feels good."  See
medical treatment notes from August 1986 examination.

To the extent that the Veteran contends that a medical
relationship exists between his disabilities and his military
service, such statements offered in support of his claim does not
constitute competent evidence and cannot be accepted by the
Board, because the record does not indicate the claimant has the
necessary medical education or experience to provide a competent
and credible opinion on a complex matter such as the etiology of
his diseases.  See Davidson v. Shinseki, 581 F. 3d 1313 (Fed.
Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir.
2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006);
Charles v. Principi, 16 Vet. App. 370 (2002).

The Board is aware of the provisions of 38 C.F.R. � 3.303(b),
relating to chronicity and continuity of symptomatology.
However, the first competent evidence of a knee disability comes
from the May 2009 VA examination, more than 15 years after the
Veteran has separated from service.  As noted above, the VA
examiner determined that the Veteran's injury from his basketball
accident in 1986 is not related to his current disability.  The
VA examiner stated in his opinion that "the Veteran did not show
any evidence of continuity of complaint or of continuation of
need for treatment."  See Maxson v. Gober, 230 F.3d 1330, 1333
(Fed. Cir. 2000) [noting that it was proper to consider the
veteran's entire medical history, including the lengthy period of
absence of complaint with respect to the condition he now
raised].  See also Voerth v. West, 13 Vet. App. 117, 120-21
(1999) [there must be medical evidence on file demonstrating a
relationship between the veteran's current disability and the
claimed continuous symptomatology, unless such a relationship is
one as to which a lay person's observation is competent].  Such
evidence is lacking in this case.  Continuity of symptomatology
after service has therefore not been demonstrated.  As a result
the third Hickson element has not been met.

In conclusion, for the reasons and bases expressed above, the
Board finds that the preponderance of the evidence is against the
Veteran's claim of entitlement to service connection for a left
knee disability, as Hickson element (3) has not been met.  The
benefit sought on appeal is accordingly denied.

ORDER

Entitlement to service connection for a left knee disability is
denied.

____________________________________________
THERESA M. CATINO
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: DEMETRIOS G ORFANOUDIS

disposition: denied

text: Entitlement to a TDIU is denied.

text:
Citation Nr: 1107000
Decision Date: 02/22/11    Archive Date: 03/04/11

DOCKET NO.  09-22 921	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office
in New Orleans, Louisiana

THE ISSUE

Entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the
United States

ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel

INTRODUCTION

The appellant had active service from August 1967 to August 1969.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a March 2008 rating decision issued by the
Department of Veterans Affairs (VA), Regional Office (RO), in New
Orleans, Louisiana.

FINDINGS OF FACT

1.  The appellant is service-connected for posttraumatic stress
disorder (PTSD), bilateral hearing loss, type 2 diabetes
mellitus, tinnitus, and peripheral neuropathy of the upper
extremities.  The appellant's combined rating is 70 percent.

2. The evidence of record indicates that the appellant has four
years of high school and has on-the-job training.  He has
experience working as a certified trainer for the Kansas City
Power and Light Company.  He last worked in 2007.

3.  The appellant's service-connected disabilities do not
preclude him from obtaining and retaining substantially gainful
employment.

CONCLUSION OF LAW

The criteria for a TDIU have not been met.  38 U.S.C.A. �� 1155,
5107(a) (West 2002 & Supp. 2010); 38 C.F.R. �� 3.321, 3.340,
3.341, 4.16 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the
appellant's claims file.  Although the Board has an obligation to
provide reasons and bases supporting this decision, there is no
need to discuss, in detail, the evidence submitted by the
appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) (the Board must review the entire
record, but does not have to discuss each piece of evidence).
The analysis below focuses on the most salient and relevant
evidence and on what this evidence shows, or fails to show, on
the claim.  The appellant should not assume that the Board has
overlooked pieces of evidence that are not explicitly discussed
herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the
law requires only that the Board address its reasons for
rejecting evidence favorable to the appellant).

Also, the Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for rejecting
any evidence favorable to the appellant.  Equal weight is not
accorded to each piece of evidence contained in the record; every
item of evidence does not have the same probative value.  When
all the evidence is assembled, VA is responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either event, or
whether a preponderance of the evidence is against a claim, in
which case, the claim is denied.  See Gilbert v. Derwinski, 1
Vet. App. 49 (1990).

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's
duty to notify and assist claimants in substantiating a claim for
VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126
(West 2002 & Supp. 2010); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and
3.326(a) (2010).

Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his or
her representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.  38
U.S.C.A. � 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. � 3.159(b)
(2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper
VCAA notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate the
claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide. VCAA notice should be provided
to a claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi,
18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed.
Cir. 2006).

A review of the claims folder indicates that after the appellant
submitted his claim for a TDIU, the RO forwarded to him a TDIU-
specific VCAA letter.  Such a letter was sent in February 2008.
A review of that letter indicates that it fully satisfied the
duty to notify provisions.  The letter informed him of the
evidence that was required to substantiate the claim for a TDIU
and of his, and VA's, respective duties for obtaining evidence.
The appellant was also asked to submit evidence and/or
information in his possession to the AOJ.

If any notice deficiency is present in this case, the Board finds
that any prejudice due to such error has been overcome in this
case by the following:  (1) based on the communications sent to
the claimant over the course of this appeal, the claimant clearly
has actual knowledge of the evidence the claimant is required to
submit in this case; and (2) based on the claimant's contentions
as well as the communications provided to the claimant by VA, it
is reasonable to expect that the claimant understands what was
needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S.Ct.
1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333,
337 (3d Cir. 1974) ("[N]o error can be predicated on
insufficiency of notice since its purpose had been served.").
In order for the Court to be persuaded that no prejudice resulted
from a notice error, "the record must demonstrate that, despite
the error, the adjudication was nevertheless essentially fair."
Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).

VA has informed the appellant of which evidence he was to provide
to VA and which evidence VA would attempt to obtain on his
behalf.  In this regard, the VA sent the appellant notice of the
VCAA, which spelled out the requirements of the VCAA and what the
VA would do to assist the appellant.  The VA informed the
appellant that it would request records and other evidence, but
that it was the appellant's responsibility to ensure that the VA
received the records.  The appellant was told that he should
inform the VA of any additional records or evidence necessary for
his claim for a total disability rating.

The VA fulfilled its duty to assist.  In this instance, the VA
obtained the appellant's available medical treatment records,
including requesting any treatment records from the facilities
the appellant had been treated, and those other records that the
VA was made aware thereof.  The VA has also contacted the Social
Security Administration to discover whether the appellant had
submitted any type of claim for benefits, and if he had, a
request for any records were asked therefor.  A negative response
was received from the Social Security Administration.  The VA
further wrote to the appellant's last employer, Kansas City Power
and Light Company to discover whether the appellant had been
medically retired from the company.  A negative response was also
received from Kansas City Power and Light Company.  Given the
foregoing, the Board finds that the RO has substantially complied
with the duty to procure the necessary medical and other records.

Additionally, VA has a duty to obtain a medical examination or
opinion when such examination or opinion is necessary to make a
decision on the claim.  38 U.S.C.A. �5103A(d) (West 2002 & Supp.
2010).  In this instance, the appellant underwent multiple and
various VA examinations in February 2008 and March 2008 in order
to determine whether his service-connected disabilities prevented
him from obtaining and maintaining gainful employment.  The
results of those examinations have been included in the claims
folder for review.  These reports involved a review of the claims
folder by the requisite examiners and the results of actual
testing of the appellant.  Therefore, the Board finds that these
reports are adequate for rating purposes.  See Barr v. Nicholson,
21 Vet. App. 303, 311 (affirming that a medical opinion is
adequate if it provides sufficient detail so that the Board can
perform a fully informed evaluation of the claim).  Given the
foregoing, the Board finds that the VA has substantially complied
with the duty to obtain the requisite medical information
necessary to make a decision on the appellant's claim.

Moreover, the appellant was given the opportunity to present
evidence and testimony before an RO hearing officer and the
Board.  The appellant was given notice that the VA would help him
obtain evidence but that it was up to the appellant to inform the
VA of that evidence.  During the course of this appeal, the
appellant has proffered documents and statements in support of
his claim.  It seems clear that the VA has given the appellant
every opportunity to express his opinions with respect to the
issue now before the Board and the VA has obtained all known
documents that would substantiate the appellant's assertions.

In this case, because each of the content requirements of a VCAA
notice has been fully satisfied, any error in not providing a
single notice to the appellant covering all content requirements
is harmless error.  Here, the appellant is not prejudiced by the
Board's consideration of his claim as VA has already met all
notice and duty to assist obligations to the appellant under the
VCAA.  In essence, the appellant in this case has been notified
as to the laws and regulations governing TDIU claims.  He has
been advised of the evidence considered in connection with his
appeal and what information VA and the appellant would provide.
He has been told what the VA would do to assist him with his
claim and the VA has obtained all documents it has notice thereof
that would assist in the adjudication of the appellant's claim.
Thus, the Board finds that there has been no prejudice to the
appellant that would warrant further notification or development.
As such, the appellant's procedural rights have not been
abridged, and the Board will proceed with appellate review.
Bernard v. Brown, 4 Vet. App. 384, at 393 (1993).

The appellant has requested a total disability evaluation based
on individual unemployability due to his service-connected
disabilities.  The appellant is service-connected for PTSD, rated
at 30 percent; bilateral hearing loss, rated at 20 percent;  type
2 diabetes mellitus, rated at 20 percent; tinnitus, rated at 10
percent; peripheral neuropathy of the right upper extremity,
rated at 10 percent; and peripheral neuropathy of the left upper
extremity, rated at 10 percent.  The appellant's combined
disability rating is 70 percent.

The appellant contends that he is unable to maintain
substantially gainful employment mainly as a result of the
symptoms and manifestations produced by his service-connected
disabilities.  He has repeatedly claimed that he retired from the
Kansas City Power and Light Company because his hearing was so
bad that he had become a safety hazard since he could not hear
warnings.

A TDIU may be assigned where the schedular rating for service-
connected disabilities is less than 100 percent when it is found
that the service member's service-connected disabilities render
him unable to secure or follow a substantially gainful
occupation.  38 C.F.R. �� 3.321, 3.340, 3.341, 4.16 (2010).
Unemployability associated with advancing age or intercurrent
disability may not be considered in determining entitlement to a
total compensation rating.  38 C.F.R. � 4.19 (2010).  Factors to
be considered are the appellant's employment history and his
educational and vocational attainment.  Ferraro v. Derwinski, 1
Vet. App. 32, 332 (1991).

The regulatory scheme for a TDIU provides both objective and
subjective criteria.  Hatlestad v. Derwinski, 3 Vet. App. 213,
216 (1992); VAOPGCPREC 75-91 (Dec. 27, 1991).  The objective
criteria, set forth at 38 C.F.R. � 3.340(a)(2) (2010), provide
for a total rating when there is a single disability or a
combination of disabilities that results in a 100 percent
schedular evaluation.  Subjective criteria, set forth at 38
C.F.R. � 4.16(a) (2010), provide for a TDIU when, due to service-
connected disability, a service member is unable to secure or
follow a substantially gainful occupation, and has a single
disability rated 60 percent or more, or at least one disability
rated 40 percent or more with additional disability sufficient to
bring the combined disability rating to 70 percent.  38 C.F.R. ��
3.340, 3.341, 4.16(a) (2010).  In exceptional circumstances,
where the appellant does not meet the aforementioned percentage
requirements, a total rating may nonetheless be assigned upon a
showing that the individual is unable to obtain or retain
substantially gainful employment.  38 C.F.R. � 4.16(b) (2010).  A
TDIU presupposes that the rating for the service-connected
condition is less than 100 percent, and only asks for TDIU
because of subjective factors that the objective rating does not
consider.  Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  In
evaluating a service member's employability, the Board cannot
overlook the level of education he completed, his professional
training and employment history.  38 C.F.R. �� 3.341, 4.16, 4.19
(2010).

Employment is that "which is ordinarily followed by the
nondisabled to earn their livelihood with earnings common to the
particular occupation in the community where the Veteran
resides."  Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358
(1991).  "Marginal employment shall not be considered
substantially gainful employment."  38 C.F.R. � 4.16(a) (2010).
Generally, "unemployability" is synonymous with inability to
secure and follow a substantially gainful occupation.  VAOPGCPREC
75-91.

Pursuant to 38 C.F.R. � 4.16(b) (2010), when a claimant is unable
to secure and follow a substantially gainful occupation by reason
of service-connected disabilities, but fails to meet the
percentage requirements for eligibility for a total rating set
forth in 38 C.F.R. � 4.16(a) (2010), such case shall be submitted
for extraschedular consideration in accordance with 38 C.F.R. �
3.321 (2010).  In the present case, the appellant does not meet
the threshold for schedular consideration since the appellant has
been assigned a 40 percent disability rating for any of
disabilities even though his combined disability rating is 70
percent.

The record reflects that the appellant has completed four years
of high school and worked for the Kansas City Power and Light
Company for thirty years.  He retired from the company in 2007;
said retirement was not for medical purposes.  Per the appellant,
when he was working for the Kansas City Power and Light Company
he was an instructor.  There is no evidence that he ever received
specific vocational rehabilitation training or any other
specialized training.

The appellant has asserted that the reason why he retired was
because of his service-connected bilateral hearing loss.  He
stated that he was worried that other people on the job would be
injured because of his lack of hearing.  He has also claimed that
he was unable to take the continued stress, and was having
difficulty concentrating and being around others.  He associates
these behavioral shortcomings with his PTSD.

As noted above, the appellant underwent a number of VA
examinations in February and March 2008 to discover the severity
of his service-connected disabilities.  A psychiatric examination
was accomplished and it was recognized that the appellant had
difficulty with others and was socially isolated.  He further
showed manifestations of depression, anxiety, and hyperarousal.
However, the examiner did not conclude that the appellant was
unable to obtain and maintain some type of employment
commensurate with his training and experience.

An examination was also performed with respect to the appellant's
peripheral neuropathy of his upper extremities.  Although the
appellant was reported to have some numbness and tingling in the
upper extremities, such symptoms were reported as being stable.
While the examiner indicated that the condition would have a
significant effect on his occupational endeavors, the examiner
did not state or insinuate that the condition would prohibit the
appellant from sedentary employment.

With respect to the appellant's diabetes mellitus, it was noted
that the disease was stable and controlled through medication.
Although the examiner wrote that the diabetes mellitus could
cause increased absenteeism from work, because the diabetes was
controlled, the disability itself would not prevent the appellant
from working.

Finally, concerning the appellant's tinnitus and bilateral
hearing loss, when examined in March of 2008, the examination
results basically mirrored previous findings.  Nothing in the
findings suggested or insinuated that the appellant was unable to
work.  Although the appellant might be suffering from severe
hearing loss at the upper spectrum, such a condition would not
prohibit the appellant from being employed at a position that his
hearing loss would not endanger others.

Also as reported above, the appellant's medical treatment records
have been obtained and included in the claims folder for review.
None of these records contain a recommendation from a health care
provider that the appellant not seek employment.  None of the
records endorse the appellant's contentions that he is unable to
work.  None of the records insinuate that the appellant is unable
to perform a full range of sedentary work activity.

It is noted that there are no private or governmental medical
opinions contained in the medical records that would support the
appellant's assertions that he is unable to work as a result of
his service-connected disabilities.  There are only the
statements provided by the appellant himself.

The appellant's physical problems, symptoms, and manifestations,
which are referenced in the VA records, undoubtedly compromise
the range of jobs available to him at some exertional levels.
Yet, it is relevant to note that none of the various VA medical
care providers have opined that the appellant's service-connected
disabilities would preclude employability.  The Board would
further note that the VA psychiatric notes accomplished after the
VA psychiatric examination in March 2008 suggest that the
appellant's PTSD symptoms and manifestations had become less
disabling.  In fact, the more recent medical examinations
consistently suggest that the appellant is "employable."
Moreover, the medical treatment records along with the recent VA
examination reports indicate that the service-connected
disabilities are stable and well-controlled, and do not appear to
require additional or extraordinary care that would prevent the
appellant from working at a desk.

With regard to these pieces of medical evidence, the Board must
weigh the credibility and probative value of the medical
opinions, and in so doing, the Board may favor one medical
opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30
(1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see
also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not
error for the Board to favor the opinion of one competent medical
expert over that of another when the Board gives an adequate
statement of reasons and bases for doing so).  The Board must
account for the evidence it finds persuasive or unpersuasive, and
provide reasons for rejecting material evidence favorable to the
claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).
In determining the weight assigned to this evidence, the Board
also looks at factors such as the health care provider's
knowledge and skill in analyzing the medical data.  See Guerrieri
v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v.
Brown, 10 Vet. App. 279, 284 (1997).

Here, although the appellant contends that his service-connected
disabilities render him to be unable to be employed, the Board
finds substantial probative weight against the claim in the
recent VA examinations versus the statements made by the
appellant.  The Court in Van Hoose v. Brown, 4 Vet. App. 361
(1993) held that for an appellant to prevail in a claim for
individual unemployability benefits, it is necessary that the
record reflect some factor that takes his case outside the norm.
See also 38 C.F.R. �� 4.1, 4.15 (2010).  The fact that a claimant
is unemployed or has difficulty obtaining employment is not
enough.  A high schedular rating that is assigned is recognition
that the impairment makes it difficult to obtain and keep
employment.  The question is whether the appellant is capable of
performing the physical and mental acts required by employment,
not whether he can find employment.

Unemployability associated with advancing age or intercurrent
disability may not be used as a basis for a total disability
rating.  38 C.F.R. � 4.19 (2010).  Marginal employment is not to
be considered substantially gainful employment.  Factors to be
considered, however, will include the service member's employment
history, educational attainment, and vocational experience.  38
C.F.R. � 4.16 (2010).

In determining whether a TDIU is warranted, the VA must determine
whether the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either event, or
whether the preponderance of the evidence is against the claim,
in which case an increased rating must be denied.  38 U.S.C.A. �
5107 (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App.
49 (1990).  When evaluating the appellant's service-connected
disabilities in toto and their effect on his ability to obtain
and maintain gainful employment, the Board is mindful that when
it is not possible to separate the effects of the service-
connected condition from a non-service connected condition, 38
C.F.R. � 3.102 (2010) [which requires that reasonable doubt be
resolved in the appellant's favor] dictates that such signs and
symptoms be attributed to the service-connected condition.  See
Mittleider v. West, 11 Vet. App. 181 (1998).

The determinative medical evidence as discussed herein supports
the proposition that the appellant is not unemployable solely due
to his service-connected disabilities.  Viewed objectively, it
preponderates against the claim.  In this case the relevant
criterion of 38 C.F.R. 4.16 (2010) provides that a TDIU claimant
be unable to secure and follow a substantially gainful occupation
on account of service-connected disabilities.  However, the
weight of the evidence shows the unemployability, if present, is
more likely the result of the appellant's lack of interest in
working because the medical evidence does show that the appellant
could perform sedentary duties, if he so desired.  See, for
example, Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991).

The RO has not submitted the appellant's case to the Director of
the Compensation and Pension Service for consideration of an
extraschedular evaluation.  In this case, the evidence does not
require such submission.  A clear preponderance of the evidence
is against a finding that the appellant is unable to follow a
substantially gainful occupation by reason of his service-
connected disabilities.  See 38 C.F.R. � 4.16(a) (2010).  Because
the evidence does not show that service-connected disabilities
render him unemployable, there is no basis to support an
extraschedular TDIU rating.  The benefit of the doubt doctrine is
inapplicable where, as here, the preponderance of the evidence is
against the claim for a TDIU.  See Gilbert, supra.  The
appellant's claim is denied.

ORDER

Entitlement to a TDIU is denied.

____________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JACQUELINE E MONROE

disposition: granted

condition: psychiatric

disposition: remanded

text: Prior to arranging for the Veteran to undergo examination, the RO should obtain any outstanding records o [is remanded]

text:
Citation Nr: 1108000
Decision Date: 03/01/11    Archive Date: 03/09/11

DOCKET NO.  07-18 475	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Los Angeles, California

THE ISSUES

1.  Whether new and material evidence to reopen a claim for service connection for an acquired psychiatric disorder has been received.

2.  Entitlement to service connection for an acquired psychiatric disorder.

WITNESSES AT HEARING ON APPEAL

Appellant and his wife

ATTORNEY FOR THE BOARD

A. L. Tarr, Law Clerk

INTRODUCTION

The Veteran served on active duty from February 1982 to December 1989.

This appeal to the Board of Veterans' Appeals (Board) arose from a June 2006 rating decision in which the RO denied service connection for an acquired psychiatric disorder.  In July 2006, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in May 2007 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2007.

In September 2010, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record.  During the hearing, the Veteran submitted additional medical evidence directly to the Board and provided a waiver of initial RO consideration of the evidence.  This evidence is accepted for inclusion in the record on appeal.  See 38 C.F.R. �� 20.800, 20.1304 (2010).

The Board notes that, while the Veteran previously was represented by AMVets, in July 2008, before certification of the appeal to the Board, AMVets revoked its power of attorney by way of a letter sent to VA and the Veteran.  As the Veteran has not obtained another representative, the Board now recognizes the Veteran as proceeding pro se in this appeal.

The RO addressed the claim for service connection for an acquired psychiatric disorder on the merits.  However, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. �� 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection.  That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  As the Board must first decide whether new and material evidence to reopen the claim has been received-and, in view of the Board's favorable decision on the request to reopen-the Board has characterized this appeal as encompassing the two matters set forth on the title page.
The Board's decision addressing the request to reopen the claim for service connection for an acquired psychiatric disorder is set forth below.  The claim for service connection for an acquired psychiatric disorder, on the merits, is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC.  VA will notify the Veteran when further action, on his part, is required.

As a final preliminary matter, the Board notes that in an August 2009 letter to the RO, the Veteran indicated that he would like service connection for the injuries he suffered during service; however, he did not specify any in-service injury or current disability.  If the appellant wishes to file a claim of entitlement to service connection for a disability, he should file such a claim with the RO.

FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim to reopen have been accomplished.

2.  In an August 2004 rating decision, the RO denied service connection for an acquired psychiatric disorder; the Veteran did not perfect an appeal of that decision.

3.  Evidence associated with the claims file since the August 2004 denial is not cumulative and redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder.

CONCLUSIONS OF LAW

1.  The August 2004 rating decision in which the RO denied service connection for an acquired psychiatric disorder is final.  38 U.S.C.A. � 7105(b) (West 2002); 38 C.F.R. �� 3.104, 20.302, 20.1103 (2010).

2.  As evidence pertinent to the claim for service connection for an acquired psychiatric disorder, received since the RO's August 2004 denial, is new and material, the criteria for reopening the claim for service connection for an acquired psychiatric disorder are met.  38 U.S.C.A. �� 5108, 7105 (West 2002); 38 C.F.R. � 3.156 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

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.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) 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) (2010).

Given the Board's favorable disposition of the claim to reopen, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished.

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. � 1131 (West 2002); 38 C.F.R. � 3.303 (2010).  Such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  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).

As indicated above, the RO denied the Veteran's claim for service connection for an acquired psychiatric disorder in August 2004.  The evidence of record at the time consisted of service and VA treatment records from the VA Medical Center (VAMC) in Loma Linda, CA dating from July 2002 to January 2003.  The service medical records revealed treatment for depressed mood and a diagnosis of alcohol dependence with severe substance induced personality disorder.  The VA treatment records reflected a diagnosis of substance induced mood disorder with psychotic features.  The basis for the RO's denial of service connection was that the evidence did not show evidence of a chronic psychiatric disability which was related to service.

In September 2004, the Veteran filed a timely NOD; and the RO issued an SOC in August 2005.  However, the Veteran did not perfect a timely appeal to the August 2004 rating decision.  The RO's August 2004 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis.  See 38 U.S.C.A. � 7105; 38 C.F.R. �� 3.104, 20.302, 20.1103.

Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156.  See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

The Veteran sought to reopen his previously denied claim in December 2005.  Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. � 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as 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 of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156(a).

In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The provisions of 38 U.S.C.A. � 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Here, the last final denial of the claim is the RO's August 2004 rating decision.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

Pertinent evidence added to the claims file since August 2004 includes VA treatment records from the VAMC in West Los Angeles, CA, VA treatment records from the VAMC in Loma Linda, CA, and a November 2005 letter from A. T., a licensed social worker.  The VA treatment records reflect diagnoses of bipolar disorder and anxiety disorder.  VA progress notes from April 2010 to September 2010 note that the Veteran's current bipolar disorder was misdiagnosed as personality disorder in 1989.  The November 2005 letter from a licensed social worker contends that the Veteran was actually suffering from depression and anxiety during service, and his condition was misdiagnosed as a personality disorder.

The Board finds that the above-described evidence provides a basis for reopening the claim for service connection for an acquired psychiatric disorder.

At the time of the August 2004 rating decision, there was evidence that the Veteran had an alcohol induced acquired psychiatric disorder; however, there was no competent evidence that the Veteran's diagnosed acquired psychiatric disorder was incurred in or related to service.

The Board finds that the foregoing evidence is "new" in that it was not before agency decisionmakers at the time of the August 2004 final decision of the claim for service connection, and is not duplicative or cumulative of evidence previously of record.  Moreover, this evidence is "material" in that it addresses a medical nexus between the Veteran's current acquired psychiatric disorder and service (an unestablished fact necessary to substantiate the claim), and, when considered along with the Veteran's service treatment records, provides a reasonable basis for allowance of the claim.

Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for an acquired psychiatric disorder are met.  See 38 U.S.C.A. � 5108; 38 C.F.R. � 3.156.

ORDER

As new and material evidence to reopen the claim for service connection for an acquired psychiatric disorder has been received, to this limited extent, the appeal is granted.

REMAND

The Board's review of the claims file reveals that further RO action on the claim for service connection for an acquired psychiatric disorder, on the merits, is warranted.

VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. � 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one.  McLendon, 20 Vet. App. at 83.

VA treatment records reveal diagnoses of bipolar disorder and anxiety disorder.  The Veteran's service treatment records note treatment for depressed mood and a diagnosis of alcohol dependence with severe substance induced personality disorder.  The VA progress notes from April 2010 to September 2010 note that the Veteran's current bipolar disorder was misdiagnosed as a personality disorder during service.  A November 2005 letter from a licensed social worker indicates that the Veteran's anxiety and depression began during service.

The Board finds that while the above-cited evidence has provided a basis for reopening the previously denied claim, it does not provide a sufficient basis for granting the claim at this time.  While the VA treatment records and letter from the social worker indicate that the Veteran's current psychiatric disorders began during service, the VA physician and licensed social worker provide no rationale for their conclusions regarding the Veteran's misdiagnosis during service.  The Board finds that further medical opinion-based on examination of the Veteran, full consideration of the Veteran's documented history and assertions, and supported by clearly-stated rationale-is needed to resolve the claim for service connection.  See 38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159; McLendon, 20 Vet. App. at 83.

Accordingly, the RO should arrange for the Veteran to undergo VA psychiatric examination, by a psychologist or psychiatrist, at a VA medical facility.  The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in denial of the reopened claim for service connection.  See 38 C.F.R. � 3.655(b) (2010).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility.

Prior to arranging for the Veteran to undergo examination, the RO should obtain any outstanding records of VA treatment for acquired psychiatric disorders.  During the Travel Board hearing, the Veteran indicated that he had previously received treatment for his acquired psychiatric disorders at the VAMC in Long Beach, CA; however, no records from the Long Beach VAMC have been obtained.  The claims file contains VA medical records from the West Los Angeles, CA VAMC, from January 2001 to April 2006 and from the Loma Linda, CA VAMC, from July 2002 to July 2008.  In September 2010, the Veteran submitted records from the Loma Linda VAMC from April 2010 to September 2010; however, it is unclear if there are additional records for the time period from July 2008 to April 2010.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Hence, the RO should obtain from the West Los Angeles VAMC, the Loma Linda VAMC, and the Long Beach VAMC, any outstanding records of treatment for acquired psychiatric disorders, following the current procedures prescribed in 38 C.F.R. � 3.159(c) as regards requests for records from Federal facilities.

Further, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal.  The RO's letter to the Veteran should explain that he has a full one-year period for response.  See 38 U.S.C.A. � 5103(b)(1) (West 2002); but see 38 U.S.C.A. � 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).

Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. � 3.159 (2010).

The actions identified herein are consistent with the duties to notify and assist imposed by VCAA.  See 38 U.S.C.A. �� 5103, 5103A; 38 C.F.R. � 3.159.  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance.  Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for an acquired psychiatric disorder.  The RO's adjudication of the claim should include consideration of all evidence added to the record since the RO's last adjudication of the claim (to include, for the sake of efficiency, evidence submitted during the September 2010 Board hearing notwithstanding the waiver of RO consideration of the evidence)

Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action:

1.  The RO should obtain from the West Los Angeles VAMC, the Loma Linda VAMC, and the Long Beach VAMC any outstanding records of treatment for an acquired psychiatric disorder.  The RO should obtain West Los Angles VAMC records since April 2006 and Loma Linda VAMC records since July 2008.  The RO must follow the procedures set forth in 38 C.F.R. � 3.159(c) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the claims file.

2.  The RO should send to the Veteran a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record.

The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).

3.  If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. � 3.159.  All records and responses received should be associated with the claims file.  If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

4.  After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA psychiatric examination, by a psychiatrist or psychologist, at a VA medical facility.  The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions.  All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

The examiner should clearly identify all current acquired psychiatric disorder(s).  Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service.  In rendering the requested opinion, the physician should specifically consider the VA progress notes and social worker letter (indicating that the Veteran was misdiagnosed with a personality disorder during service) and all other post-service treatment records, as well as the Veteran's contentions.

The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report.

5.  If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility.

6.  To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998).

7.  After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for service connection for an acquired psychiatric disorder.  If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claim, the RO should apply the provisions of 38 C.F.R. � 3.655(b), as appropriate.  Otherwise, the RO should adjudicate the claim for service connection for an acquired psychiatric disorder, on the merits, in light of pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claim) and legal authority.

8.  If the benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits 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); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND 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.A. �� 5109B, 7112 (West Supp. 2010).

______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: P M DILORENZO

text:
Citation Nr: 1109000
Decision Date: 03/07/11    Archive Date: 03/17/11

DOCKET NO.  06-39 604	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement for bilateral hearing loss, and if so, whether service connection warranted.

2.  Entitlement to service connection for asbestosis.

3.  Entitlement to service connection for a lower back disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

S.K.C. Boyce, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1943 to January 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the above claims.  In July 2009, the Board remanded the claims for further development.  The appeal was returned to the Board in February 2011.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2010).  38 U.S.C.A. � 7107(a)(2) (West 2002).

In January 1980, the Veteran initially claimed service connection for a "back injury," asserting that he underwent surgery at a hospital in Astoria, Oregon, in 1946 after he was struck with a hammer on the lower back.  In a March 1980 rating decision, the RO denied entitlement to service connection for a lower back disorder on the grounds that the Veteran's service treatment records did not show treatment for a back injury.  The Veteran did not appeal, and the March 1980 rating decision became final.  See 38 U.S.C.A. � 7105.  However, in January 2009, the VA obtained the Veteran's clinical records from the U.S Naval Hospital in Astoria, Oregon, showing diagnosis and treatment for a pilonidal cyst at the base of the spine.  Therefore, rather than determining whether new and material evidence has been submitted, the claim for service connection for lower back disorder will be reconsidered on the merits.  See 38 C.F.R. � 3.156(c) (2009).

The issue of entitlement to service connection for a lower back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.

FINDINGS OF FACT

1.  The Veteran's initial claim for entitlement to service connection for bilateral hearing loss was denied by an unappealed May 1994 rating decision.

2.  The evidence received since the May 1994 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the service connection claim for bilateral hearing loss.

3.  The Veteran's bilateral hearing loss was not incurred in, or caused by, his military service.

4.  The Veteran's asbestosis was not manifested during active service or until many years thereafter, nor is the currently diagnosed asbestosis otherwise causally related to such service.

CONCLUSIONS OF LAW

1.  The May 1994 rating decision denying the Veteran's petition to reopen his claim of entitlement to service connection for bilateral hearing loss is final.  38 U.S.C.A.
� 7105 (West 2002); 38 C.F.R. � 20.1103 (2010).

2.  As evidence received since the May 1994 rating decision is new and material, the claim of entitlement to service connection for bilateral hearing loss is reopened.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156 (2010).

3.  The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C.A. �� 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R.
�� 3.102, 3.303, 3.385 (2010).

4.  The criteria for entitlement to service connection for asbestosis have not been met.  38 U.S.C.A. �� 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. �� 3.102, 3.303 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. � 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi,
18 Vet. App. 112 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  With regard to claims to reopen finally disallowed claims, the VCAA requires notice of the evidence needed to reopen the claim, as well as the evidence necessary to establish the underlying benefit sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

In this decision, the Board reopens the Veteran's claim of entitlement to service connection for bilateral hearing loss. Thus, a discussion of notice requirements under Kent is not necessary as any error would be harmless error.  Furthermore, as the Board is remanding the issue of service connection for a lower back disorder, no further discussion of VA's duty to notify or assist is necessary with regard to that issue.

With regard to the remaining issues of service connection for asbestosis and service connection for bilateral hearing loss, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  The RO letter sent in November 2005 that informed the Veteran of all three elements required by 38 C.F.R. � 3.159(b), as stated above.  In light of the denial of the Veteran's claims for service connection for bilateral hearing loss and a lower back disorder, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess.

VA also has a duty to assist a claimant in obtaining evidence to substantiate his claim.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  This duty includes assisting the Veteran in the procurement of service treatment records, other pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. � 5103A;
38 C.F.R. � 3.159.

Here, the RO has obtained the Veteran's service treatment records, VA treatment records, and all private treatment records adequately identified by the Veteran.  In July 2009, the Board remanded this appeal further development.  The AMC was instructed to obtain (1) all VA treatment records, to include any available treatment records from the VA hospital in Astoria, Oregon, dated from 1946; (2) the Veteran's clinical records from the Naval Hospital in Astoria, Oregon, dated from 1946; and (3) if authorization was proved by the Veteran, his private treatment records from Miracle Ear, previously identified on his October 2005 claim.  The Veteran's clinical records were obtained.  The AMC also obtained the Veteran's VA treatment records from the VA Medical Center in Nashville, Tennessee.  After sending a request to the VA Medical Center in Portland, Oregon, the AMC was advised that the VA treatment records sought did not exist by letter dated October 2009.  The AMC also sent a letter to the Veteran in September 2009 with an attached VA Form 21-4142, Authorization and Consent to Release Information, for Miracle Ear and advised him that he must complete and return the form before VA could obtain the private treatment records sought.  The Veteran did not reply.

As the Veteran did not provide VA with the information necessary to locate his private treatment records, VA has no further duty to assist the Veteran in obtaining his medical records from Miracle Ear.  See 38 C.F.R. � 3.159(c)(1)(i).  Although VA has a duty to assist the appellant in developing evidence pertinent to a claim, the appellant also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

The Board's July 2009 remand order also instructed the AMC to schedule the Veteran for a VA asbestosis examination and, if required due to the receipt of new evidence, an additional VA audiological examination.  Accordingly, an asbestosis examination was conducted in November 2009, and an additional audiological examination was conducted in September 2010.  The Veteran was also provided with a VA examination in April 2007.  The Veteran's asbestosis examination was accurate, descriptive, and based on the complete medical record, including the Veteran's lay assertions.  The Veteran's September 2010 audiological examination provided the April 2007 examiner with an opportunity to review her opinion based on new evidence that had been associated with the claims folder.  The examiner noted that the claims folder was not available at the time of the examination, but that it was received and reviewed prior to the issuance of the opinion requested.  Supplemental opinions were issued in October and November 2010 in order to provide clarification.  As such, this examination was also accurate, descriptive, and based on the complete medical record, including the Veteran's lay assertions.  Therefore, VA has fulfilled any duty to provide a thorough and contemporaneous medical examination.

Moreover, the Board is satisfied that the RO has substantially complied with the Board's July 2009 remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  The AMC complied with the requirements of 38 C.F.R. � 3.159(c)(2) in the attempts to obtain the Veteran's private treatment records and any available VA treatment records from Astoria, Oregon, dated from 1946.  All other records requested have been obtained, and the Veteran was afforded a VA audiological examination and a VA asbestosis examination.

The duty to assist has been satisfied as there is no reasonable possibility that any further assistance to the Veteran by VA would serve any useful purpose.  See
38 U.S.C.A. � 5103A(a)(2); 38 C.F.R. � 3.159(d); Canlas v. Nicholson, 21 Vet. App. 312 (2007); Forcier v. Nicholson, 19 Vet. App. 414 (2006); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that there is no basis for a remand when no benefit would flow to the Veteran).  Therefore, because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

II.  New and Material Evidence

A previously denied claim may be reopened by the submission of new and material evidence, that is, evidence that has not been previously submitted to agency decision makers, and evidence that, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156.  New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.  For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously denied claim, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

In February 1994, the Veteran initially claimed service connection for hearing loss.  In a May 1994 rating decision, the RO denied entitlement to service connection for bilateral hearing loss on the grounds that the Veteran did not have a current diagnosis of hearing loss and the evidence did not show hearing loss in service.  The Veteran did not appeal, and the February 2004 rating decision became final.  See 38 U.S.C.A. � 7105.

The Veteran sought to reopen his claim in October 2005.  In April 2007, a VA audiological examination was conducted.  The examination report shows that the Veteran suffers from hearing loss in accordance with 38 C.F.R. � 3.385.  As this evidence has not previously been submitted to agency decision makers and relates to unestablished fact necessary to substantiate the claim, the claim for bilateral hearing loss is reopened.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156(a).

III.  Service Connection

Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. �� 3.303(a), 3.306.  "[I]n order to establish service connection or service-connected aggravation for a present disability the veteran must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R.
� 3.303(d).

In addition, service connection may be presumed for certain chronic diseases, including organic diseases of the nervous system such as hearing loss, which are manifested to a compensable degree within one year after separation from service.  38 U.S.C.A. �� 1101, 1110, 1112, 1131, 1137; 38 C.F.R. �� 3.307, 3.309(a).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Thompson v. Gober, 14 Vet. App. 187, 188 (2000); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  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.A. � 5107; 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

A.  Asbestosis

The Veteran contends that his current respiratory condition is the result of his service board Navy ships and submarines as a ship fitter during a period known for asbestos exposure.

VA has issued a circular on asbestos-related diseases, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), which provides guidelines for considering compensation claims based on exposure to asbestos.  The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992).  Subsequently, the M2-1 provisions regarding asbestos exposure were amended.  The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997).  The guidelines provide, in part, (1) that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; (2) that VA is to develop any evidence of asbestos exposure before, during and after service; and (3) that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information.  See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993).

Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of the pleura and peritoneum; and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis).  Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure.

M21-1, Part VI, para. 7.21(b) pertains to occupational exposure.  Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc.  As noted above, high exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction.  Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease.  Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease).  See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, � 7.21 b.

M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  In Dyment, 13 Vet. App. at 145, the Court found that provisions of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos.  Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service.  VAOPGCPREC
4-00.

The evidence of record shows that the Veteran is currently diagnosed with asbestosis.  In February 1992, the Veteran was admitted to the hospital with symptoms of dizziness, inability to stand, numbness and tingling in both arms, and blurred vision.  His physician noted an occupational history of asbestos exposure and discussed a chest x-ray that showed bilateral extensive calcifications of the pleura and granulomas throughout the lungs.  A CT scan showed extensive pleural calcifications bilaterally and calcified coin lesions throughout the lung.  His pulmonary functions studies showed mild obstructive disease and mild to moderate small airway disease with significant improvement with use of bronchodilators.  The possibility of undergoing a pleural biopsy to rule out asbestosis was discussed.  In June 1993, the state of West Virginia awarded workers compensation benefits to the Veteran for occupational pneumoconiosis.

 A chest x-ray from March 2003 reports a clinical history of asbestosis.  The impression provided is calcified pleural plaque with previous asbestos exposure and previous granulomatous disease.  Treatment notes from March 2003, June 2003, March 2004, February 2005, and October 2005 show an assessment of asbestosis or history of asbestosis.  Lastly, in November 2009, a VA examiner diagnosed the Veteran with asbestosis.

However, the evidence of record does not show that the Veteran's currently diagnosed asbestosis is related to his active military service.  The November 2009 VA examiner noted the Veteran's extensive history of occupational asbestos exposure.  This exposure is documented in the record by the aforementioned grant of workers compensation benefits and by the history of occupational asbestosis exposure that the Veteran reported to his treating physician in February 1992.  At the November 2009 VA examination, the Veteran explicitly stated that he may have been exposed to asbestos in the Navy, but definitely had thirty years of occupational asbestos exposure.

In consideration of the history provided by the Veteran and the based upon a review of the medical evidence in the claims folder, the VA examiner determined that it was less likely than not that the Veteran's current asbestosis is caused by his military service and that it is more likely related to his thirty years of civilian occupational exposure.  There is no competent medical evidence of record relating any current respiratory disorder to the Veteran's active service, and the VA examiner's opinion was rendered in full consideration of the lay statements given by the Veteran.  As such, the preponderance of the evidence is against the Veteran's claim and the benefit-of-the-doubt rule does not apply.  See 38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; Gilbert, 1 Vet. App. at 53.  The claim for service connection for asbestosis must be denied.

B.  Hearing Loss

The Board first notes that it is not prejudicial for the Board to consider the issue of service connection for hearing loss on the merits because the RO reopened the claim and considered it on the merits in a June 2007 supplemental statement of the case.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby).

The Veteran contends that he currently suffers from bilateral hearing loss due to exposure to large caliber weapons during his period of active military service.

Under VA regulations, impaired hearing is considered 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 evidence demonstrates a current disability of bilateral hearing loss.  See id.  In April 2007, the Veteran was provided with a VA audiological examination.  The Veteran had auditory thresholds above 40 decibels at all relevant frequencies bilaterally.  His speech recognition scores were 80 percent for the right ear and 76 percent for the left ear.  The diagnosis provided is moderately severe to severe sensorineural hearing loss of the right ear and moderate to severe sensorineural hearing loss of the left ear.

Additionally, as the available evidence is consistent with the Veteran's testimony, the Board finds that his statements regarding the character of service and the noise exposure experienced are credible.  Therefore, noise exposure in service is conceded.

However, there are no complains of hearing loss noted in the Veteran's service treatment records or at separation from service.  In April 2007, the VA examiner determined that the audiological data reported at the Veteran's separation examination indicated normal hearing.  The VA examiner provided the opinion that the Veteran's hearing loss was less likely as not caused by or a result of his military noise exposure because the Veteran did not seek treatment for hearing loss before 2006 and had a significant history of civilian occupational noise and chemical exposure.  As such, the examiner opined that the Veteran's hearing loss was more likely caused by occupational noise and possible ototoxic chemical exposure.

The examiner was asked to provide an additional opinion after additional evidence was associated with the claims folder showing that the Veteran purchased hearing aids in 2006.  The examiner explained that the opinion provided was not changed, and that the negative opinion was based on (1) the first objective evidence of hearing loss in the claims folder, i.e. the April 2007 audiological examination; (2) the passage of 60 years from release from service and the earliest evidence of record showing possible hearing loss dated in 2006; (3) the Institute of Medicine study showing no scientific onset for the latent onset of hearing loss many years after military noise exposure ; and (4) the Veteran's reportedly significant occupational noise and chemical exposure following service.  Therefore, it was still her opinion that the Veteran's current hearing loss is "less likely to have been caused by or related to this Veteran's now distant military service and noise exposures sustained therein."

The March 2010 VA examiner is competent to render an opinion on the etiology of the Veteran's hearing loss as a licensed audiologist, and the opinion provided was based on a review of the claims folder and a complete history of the Veteran's service and hearing loss.  Additionally, the examiner provided a thorough rationale for the opinion given.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the reasoned analysis in a medical opinion is where most of the probative value of the opinion comes from).

Furthermore, the evidence of record does not support a finding that hearing loss manifested to a compensable degree within a year of service, or that symptoms of hearing loss have been continuous since service.  The Veteran has claimed that his noise exposure in service caused hearing loss during service and ultimately led to his current hearing loss, but he did not indicate whether he continued to experience symptoms of hearing loss after service prior to seeking treatment in 2006.  As such, the Veteran's claims cannot be substantiated under the provisions of 38 C.F.R.
� 3.303(b).

Therefore, the preponderance of the evidence is against finding that the Veteran's hearing loss was incurred in service under all applicable theories of entitlement such that the benefit-of-the-doubt rule does not apply.  See 38 U.S.C.A. � 5107;
38 C.F.R. � 3.102; Gilbert, 1 Vet. App. at 53.  Service connection for hearing loss must be denied.

ORDER

Service connection for asbestosis is denied.

Service connection for bilateral hearing loss is denied.

REMAND

Unfortunately, a remand is required in this case.  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 claim so that he is afforded every possible consideration.

In accordance with the Board's July 2009 remand order, the AMC obtained the Veteran's clinical records from the Naval Hospital in Astoria, Oregon, showing diagnosis and treatment for a pilonidal cyst at the base of the spine in June 1946.  These records corroborate the Veteran's long-standing testimony regarding a back injury that he sustained in 1946 and subsequent surgery at the Naval Hospital in Astoria.  In light of the above, further development is required because the medical evidence of record does not contain sufficient information to address the required legal inquiry.  See 38 U.S.C.A. � 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Thus, it is incumbent on the Board to remand this matter for a VA examination prior to adjudicating this claim.

Additionally, an effort should be made to obtain any additional VA treatment records for the Veteran showing treatment for his lower back disorder, dated since December 2010.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2010).  Expedited handling is requested.)

1.  Make arrangements to obtain a complete copy of the Veteran's treatment records pertaining to a lower back disorder from the VA Medical Center in Nashville, Tennessee, dated since December 2010.

2.  Thereafter, schedule the Veteran for an appropriate VA examination of his lower back disorder, giving appropriate consideration to a possible neurological basis for the Veteran's back pain.  The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination.  Any indicated tests, including x-rays, should be accomplished.

The examiner is requested to provide a diagnosis of any lower back disorder found to be present, to include any neurological disorder.

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed lower back disorder had its clinical onset during active service or is related to any in-service disease, event, or injury.

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

3.  Read the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered.

4.  Finally, readjudicate the claim on appeal.  If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response.

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 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 Supp. 2010).

______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs