judge_norm: KATHLEEN K GALLAGHER

disposition: granted

text:
Citation Nr: 0808000
Decision Date: 03/07/08    Archive Date: 03/17/08

DOCKET NO.  06-24 246	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota

THE ISSUE

Entitlement to an initial rating in excess of 30 percent for
Crohn's disease.

REPRESENTATION

Appellant represented by:	Minnesota Department of
Veterans Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel

INTRODUCTION

The veteran served on active duty from May 2000 to August
2000 and from March 2002 to September 2005.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Paul, Minnesota, which granted service connection for
Crohn's disease and assigned an initial evaluation of 30
percent.  This appeal involves the disability rating
assigned.  See Fenderson v. West, 12 Vet. App. 119, 126
(1999).

A travel Board hearing was held in March 2007 before the
undersigned Veterans Law Judge, who was designated by the
Chairman to conduct the hearing pursuant to 38 U.S.C.A. �
7107(c) and who is rendering the determination in this case.
A transcript of the hearing testimony is in the claims file.

In March 2007, the veteran raised a new claim of entitlement
to service connection for scars caused by multiple surgeries
for Crohn's disease.  This matter is referred to the RO for
development and adjudication.

This case was previously before the Board in August 2007, at
which time it was remanded for additional evidentiary
development.  The development requested in that remand was
undertaken to the extent possible and the case has returned
to the Board and is ready for appellate consideration.

FINDINGS OF FACT

The veteran's Crohn's disease is manifested by regular
symptoms of abdominal pain, frequent daily bowel movements,
cramping and diarrhea, with clinical documentation of
numerous flare ups a year and health only fair during
remissions.

CONCLUSION OF LAW

The criteria for a 60 percent evaluation, but no greater, for
Crohn's disease have been met.  38 U.S.C.A. �� 1155, 5103,
5103A, 5107 (West 2002); 38 C.F.R. �� 3.321, 4.1- 4.14,
4.114, Diagnostic Code 7323 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary Matters: Duties to Notify & to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duties 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. 2005); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  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. 2005);
38 C.F.R. � 3.159(b) (2007); 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; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in his or
her possession that pertains to the claim in accordance with
38 C.F.R. � 3.159(b)(1).  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).

Following receipt of the veteran's September 2005 claim, the
RO issued a duty to assist letter in October 2005 which
advised the veteran of VA's duty to assist him to obtain
evidence to support the service connection claim for Crohn's
disease.  The letter advised the veteran that he should
identify dates and locations of treatment and of medical
evidence, lay statements, employments records, etc. which
support his claim.

Thereafter, the RO granted service connection and an
evaluation of 30 percent for Crohn's disease in a January
2006 rating decision, and the veteran disagreed with the
assignment of this initial evaluation.  That disagreement
gave rise to this appeal, and VA has issued a subsequent duty
to assist letter in August 2007 addressing the increased
rating claim for Crohn's disease.  That VCAA letter discussed
the duties and responsibilities of VA and the veteran as
pertains to obtaining and providing evidence in support of
the claim, but did not make specific reference to the
relevant diagnostic code and criteria required for an
increased evaluation for Crohn's disease.  However, as part
of the January 2006 rating decision providing the grant of a
30 percent evaluation for Crohn's disease, the veteran was
notified of the criteria for an evaluation in excess of 30
percent for that condition.  Following his disagreement with
the initially assigned evaluation, the veteran was provided
with a May 2006 statement of the case (SOC) which set forth,
in pertinent part, the complete text of 38 C.F.R. � 4.114,
Diagnostic Code 7323, providing the criteria for schedular
evaluations for Crohn's disease.  Accordingly, the Board
believes that the type of notice discussed in the case of
Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008
WL 239951 (Jan. 30, 2008), has been provided for the veteran.

Further, through his statements, the veteran has demonstrated
his understanding of what is necessary to substantiate his
claim, i.e., any notice defect was cured by the veteran's
actual knowledge.  See Sanders v. Nicholson, 487 F.3d. 881
(Fed. Cir. 2007; see also Simmons v. Nicholson, 487 F.3d 892
(Fed. Cir. 2007).  In any event, the Board finds that a
reasonable person could be expected to understand from the
notice what was needed to substantiate the claim and thus the
essential fairness of the adjudication was not frustrated.
Id.  As such, the Board concludes that, even assuming a
notice error, that error was harmless.  See Medrano v.
Nicholson, 21 Vet. App. 165 (2007); Mayfield v. Nicholson, 20
Vet. App. 537, 543 (2006).  Moreover, the veteran was
provided with a supplemental statement of the case (SSOC) in
October 2007.  See Prickett v. Nicholson, 20 Vet. App. 370
(2006) (holding that VA cured any failure to afford statutory
notice to claimant prior to initial rating decision by
issuing notification letter after decision and readjudicating
claim and notifying claimant of such readjudication in the
statement of the case).  Accordingly, the duty to notify has
been fully met in this case and the veteran was made aware
that it was ultimately his responsibility to give VA any
evidence pertaining to the claim.

There is no allegation from the claimant that he has any
additional evidence in his possession, but not associated
with the record, that is needed for a full and fair
adjudication of the claim or that he is aware of any other
evidence which might be relevant.  In fact, in 2007
additional evidence was provided for the record accompanied
by a waiver.  Subsequently, the veteran has not indicated
that he has any additional evidence to present or identify in
pursuit of his claim.  As to the claim for an increased
evaluation for Crohn's disease, the veteran has presented
himself for evaluations in 2006 and 2007, and VA clinical
records reflecting treatment for that condition throughout
the pendency of the appeal have been associated with the
claims file.  Thus, the Board finds that the purpose behind
the notice requirement has been satisfied because the
appellant has been afforded a meaningful opportunity to
participate effectively in the processing of his claim.

During the pendency of this appeal, the Court issued a
decision in the consolidated appeal of Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA
notice requirements of 38 U.S.C.A. � 5103(a) and 38 C.F.R. �
3.159(b) apply to all five elements of a service connection
claim.  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.  The
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. � 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 the elements of the claim as
reasonably contemplated by the application.  Id.
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.  This notice was provided for the veteran in the SSOC
issued in October 2007.  Moreover, in light of the grant of
an increased rating herein and the assignment of an effective
date of which dates back to the filing of the original
service connection claim in September 2005, the Board finds
that there is no prejudice to the veteran in adjudicating
this claim; moreover, both the rating and effective date
assigned are separately appealable issues which may be
pursued in the future.

Both the duty to assist the veteran and the duty to notify
the veteran have been met.  Accordingly, the Board finds that
there is no reasonable possibility that further assistance
would aid the veteran in substantiating the claim and the
veteran has not indicated that he has any additional evidence
or information to provide in support of his claim.  Hence, no
further notice or assistance to the veteran is required to
fulfill VA's duty to assist him in the development of the
claim.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001).

Factual Background

The veteran filed his original service connection claim for
Crohn's disease in September 2005.

The service medical records (SMRs) show that the veteran had
experienced symptoms of bowel pain and weight loss for
several months while he was in service.  Crohn's disease was
diagnosed in early 2003.  In February 2003, the veteran
underwent partial small bowel resection and repair of several
fistulas.  Thereafter, he underwent 4 procedures in June 2005
including additional small bowel resection and a resection of
part of the colon.  Ultimately he was discharged from service
in September 2005 due to Crohn's disease.

VA medical records show that the veteran was hospitalized in
October 2005 for treatment of a flare up of Crohn's disease
symptoms manifested by cramping, mid-abdominal pain, bloating
and nausea with vomiting.  The veteran was given several
medications including oral steroids, Mesalmine, Cipro and
Flagyl.  He improved during the course of the hospitalization
and it was recommended that he continue on steroids,
Mesalmine and Flagyl.  He was rehospitalized in December 2005
for another flare up of Crohn's disease symptoms again
manifested by cramping and abdominal pain, symptoms resolved
shortly after admission.

The veteran was examined by VA in January 2006 at which time
it was noted that he had experienced flare-ups of Crohn's
disease in October and December 2005 for which he was
hospitalized and, as a result, put on multiple medications
including Imuran, Prednisone, and Mesalamine.  His weight at
that time was 205 pounds which was noted to be higher than
usual possibly due to taking Prednisone.  The veteran
indicated that flare-ups occurred at least every 5 months.
Appetite was described as fairly good and the veteran
indicated that he experienced some occasional crampy
abdominal pain after eating.  He reported having 5 to 6 bowel
movements a day.  It was reported that the veteran was
looking for a job but that he had been in the hospital
several times since service and had been ill the rest of the
time, and so this was not an easy task.  On examination,
there was mild diffuse discomfort of the abdomen on
palpation.  The examiner opined that Crohn's disease was
initially diagnosed in and therefore related to service and
also explained that this was a chronic condition with no
known cure.

In a January 2006 rating decision, the RO granted service-
connection for Crohn's disease for which a 30 percent initial
evaluation was assigned under 38 C.F.R. � 4.114, Diagnostic
Code 7323, used for the evaluation of ulcerative colitis.
The RO denied an evaluation in excess of 60 percent,
explaining that the evidence was not indicative of numerous
attacks yearly with malnutrition and only fair health during
remissions.

Subsequent VA records reveal that the veteran was treated
with steroids for a flare-up of Crohn's disease in February
2006, was hospitalized for another flare-up in April 2006, at
which time he had abdominal pain consistent with partial
obstruction, but surgery was not recommended at that time.
He was seen in May 2006 for ileocolic recurrent Crohn's
disease, and the possibility of surgical intervention was
discussed.

In a statement from the veteran dated in July 2006, he
indicated that his Crohn's disease had worsened and was more
severe than the 30 percent evaluation reflected.  He
mentioned that he had been hospitalized 4 to 5 times during
the past year and that his health during remissions was fair
at best.  He also reported that he was taking nutritional
supplements ordered by his doctor to offset malnutrition and
was taking iron for anemia.

When seen by VA in November 2006, it was reported that during
the past 6 months the veteran had experienced 4 to 5 episodes
of obstructive symptoms, manifested by severe abdominal pain
and an inability to pass stools.  An entry dated in February
2007 documents that the veteran had recently experienced
another such episode.

In hearing testimony provided in March 2007, the veteran and
his representative indicated that the veteran was having
trouble with malnutrition as evidenced by the fact that he
could not eat fruits and vegetables as ordered by a VA doctor
and the fact that he was taking vitamin and iron supplements.
At the hearing, a lay statement was provided by a female
friend of the veteran's.  She reported that the veteran had
been in the hospital 4 to 5 times for 2 to 3 days at a time
since coming home from service.  She also stated that he had
missed work for many other flare ups for which the veteran
did not go to the hospital.  She indicated that he veteran
was extremely fatigued after work on a daily basis.

VA records show that in August 2007, the veteran was treated
on an emergent basis for a Crohn's disease flare up
associated with small bowel obstruction.  This resolved with
conservative treatment.

A VA examination was conducted September 2007 and the claims
folder was reviewed.  The veteran reported that he was nearly
always symptomatic.  He reported that he had bowel movements
between 4 and 10 times a day, occasionally associated with
cramping and diarrhea, but rarely associated with bleeding.
The veteran also indicated that during the past year he had
been hospitalized 3 times for flare-ups of Crohn's disease as
well as having several episodes of mild obstructive symptoms
over the past year which were treated at home.  The veteran
reported that his appetite was good and his weight was
stable.  With respect to the veteran's health during
remissions of Crohn's disease, the examiner explained that in
the veteran's case the condition was not episodic, but was
more consist with persistent symptomatology, sometimes
becoming severe and requiring treatment or hospitalization.
Also reported were symptoms of constant and general fatigue,
lack of energy and stamina.  The examiner indicated that the
veteran did not experience anemia, general debility or liver
abscess and noted that he was not on any medication to offset
anemia or malnutrition or which impacted his weight.  The
examiner further noted that the veteran had accepted a job
with VA which he was just about to start and reported that
during 2007, the veteran had missed about 15 days of work
from a previous job due to Crohn's disease.

Legal Analysis

The veteran contends that an increased evaluation is
warranted for his service-connected Crohn's disease and
maintains that it is more severe than is reflected by the
initially and currently assigned 30 percent evaluation.

Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity.  Separate diagnostic codes identify the
various disabilities.  38 U.S.C.A. � 1155; 38 C.F.R., Part 4.
Each disability must be viewed in relation to its history and
there must be emphasis upon the limitation of activity
imposed by the disabling condition.  38 C.F.R. � 4.1.  The
Board attempts to determine the extent to which the veteran's
service-connected disability adversely affects his or her
ability to function under the ordinary conditions of daily
life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity
in civil occupations.  38 U.S.C.A. � 1155; 38 C.F.R. �� 4.1,
4.10.

When an unlisted condition is encountered it will be
permissible to rate it under a closely related disease or
injury, in which not only the functions affected, but the
anatomical localization and symptomatology are closely
analogous.  38 C.F.R. � 4.20

Where, as is the case here, an award of service connection
for a disability has been granted and the assignment of an
initial evaluation for that disability is disputed, separate
evaluations may be assigned for separate periods of time
based on the facts found. In other words, the evaluations may
be "staged."  Fenderson v. West, 12 Vet. App. 119, 125-126
(1999).

There are diseases of the digestive system, particularly
within the abdomen, which, while differing in the site of
pathology, produce a common disability picture characterized
in the main by varying degrees of abdominal distress or pain,
anemia and disturbances in nutrition.  Consequently, certain
coexisting diseases in this area, as indicated by the
instructions under the title "Diseases of the Digestive
System," do not lend themselves to distinct and separate
disability evaluations without violating the fundamental
principle relating to pyramiding as outlined in 38 C.F.R. �
4.14. 38 C.F.R. � 4.113.  Thus, ratings under diagnostic
codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348
inclusive will not be combined with each other.  A single
evaluation will be assigned under the diagnostic code which
reflects the predominant disability picture, with elevation
to the next higher evaluation where the severity of the
overall disability warrants such elevation.  38 C.F.R.
� 4.114.

The assignment of a particular diagnostic code is "completely
dependent on the facts of a particular case."  Butts v.
Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may
be more appropriate than another based on such factors as an
individual's relevant medical history, the diagnosis and
demonstrated symptomatology.  Any change in a diagnostic code
by a VA adjudicator must be specifically explained.  Pernorio
v. Derwinski, 2 Vet. App. 625, 629 (1992).

The veteran is currently assigned a 30 percent evaluation for
Crohn's disease under 38 C.F.R. � 4.114, Diagnostic Code (DC)
7323 (colitis, ulcerative).  That code provides a 30 percent
rating for moderately severe ulcerative colitis, with
frequent exacerbations.  A 60 percent rating is warranted for
severe ulcerative colitis with numerous attacks a year and
malnutrition, the health only fair during remissions.  A 100
percent evaluation is warranted for pronounced ulcerative
colitis, resulting in marked malnutrition, anemia, and
general debility, or with serious complication such as liver
abscess.  38 C.F.R. � 4.114, DC 7323.

Upon review of the totality of the evidence and resolving any
doubt in favor of the veteran, the Board concludes that an
evaluation of 60 percent is warranted for the entirety of the
appeal period under DC 7323.  The record clearly establishes
that from 2005 to 2007, the veteran has experienced numerous
attacks or flare ups of Crohn's disease a year, several of
which required hospitalization or emergent treatment.  In
addition, documented medical evidence is consistent with a
conclusion that the veteran's health is only fair during
remission.  As explained by a VA examiner, the veteran
generally does not experience true periods of remission
during which he is asymptomatic, more accurately between
flare-ups he experiences more or less constant symptomatology
which includes frequent bowel movements, abdominal pain,
cramping and diarrhea.  In addition, both the veteran and a
close friend indicated that his "remissive" periods were
impacted by symptoms of fatigue and lack of energy.  The
rating criteria for a 60 percent evaluation under DC for 7323
also requires a showing of malnutrition.  In this case,
technically the Board is unable to find any actual clinical
documentation or diagnosis or malnutrition.  However, as
pointed out by the veteran's representative the medical
records do document that the veteran had some dietary
restrictions and was taking both vitamin and iron
supplements.

Resolving in the veteran's favor reasonable doubt as to the
severity of service-connected Crohn's disease, the Board
concludes that the criteria for a 60 percent evaluation are
met for the entirety of the appeal period (i.e. from
September 2005 forward).  However, the criteria for a 100
percent schedular evaluation are not met, as there has been
no clinical indication of marked malnutrition, anemia, and
general debility, or with serious complication such as liver
abscess, at any time.  Nor can the Board find any other
schedular criteria which would provide the basis for an
evaluation in excess of 60 percent.  (For instance, a maximum
60 percent rating is assigned under DC 7328 for marked
interference with absorption and nutrition, manifested by
severe impairment of health objectively supported by
examination findings including material weight loss under 38
C.F.R. � 4.114, DC 7328).

Thus, while the criteria for a 60 percent evaluation have
been met and the appeal is granted to this extent, the
criteria for an evaluation in excess of a 60 percent
evaluation for Crohn's disease are not met for any portion of
the appeal period.  See 38 C.F.R. � 4.130, DC 9411, supra;
Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19,
2007).  In essence, the preponderance of the evidence is
against an evaluation in excess of 60 percent for Crohn's
disease.  Since the evidence is not in equipoise, the
provisions of 38 U.S.C.A. � 5107(b) regarding resolution of
reasonable doubt are not applicable to warrant an evaluation
in excess of 60 percent for any portion of the appeal period.
38 U.S.C.A. � 5107(b) (West 2002); Gilbert v. Derwinski, 1
Vet. App. 49, 55 (1990).

ORDER

An increased evaluation for service-connected Crohn's disease
from 30 percent to 60 percent, but not higher, is granted for
the entirety of the appeal period, subject to law and
regulations governing an award of monetary compensation; the
appeal is granted to this extent only.

____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: DEBORAH W SINGLETON

text:
Citation Nr: 0810000
Decision Date: 03/26/08    Archive Date: 04/09/08

DOCKET NO.  06-13 981	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for
bilateral hearing loss.

2.  Entitlement to service connection for bilateral hearing
loss.

3.  Entitlement to service connection for tinnitus.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

L. B. Yantz, Associate Counsel

INTRODUCTION

The veteran served on active duty from September 1974 to
November 1977 and from November 1978 to January 1985.

This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a September 2005 rating decision of
the Baltimore, Maryland Department of Veterans Affairs (VA)
Regional Office (RO).

The veteran testified at a Central Office hearing before the
undersigned Veterans Law Judge in January 2008.  A transcript
of that hearing is associated with the claims file.  From the
date of the hearing, the record was held open for 30 days in
order to allow for the submission of additional evidence for
consideration; however, no additional evidence was submitted
within that time.

For reasons explained below, the Board has concluded that new
and material evidence has been submitted and that the
veteran's previously-denied claim for service connection for
bilateral hearing loss should be reopened.  The Board further
finds that additional development of the evidence is
necessary prior to rendering a decision on the merits as to
the underlying issue, namely whether the veteran's bilateral
hearing loss was incurred in service.  This issue, as well as
the issue of entitlement to service connection for tinnitus,
are addressed in the REMAND portion of the decision below and
are REMANDED to the RO via the Appeals Management Center
(AMC) in Washington, DC.

FINDINGS OF FACT

1.  In an unappealed March 1989 rating decision, the RO
denied the veteran's service connection claim for ears (later
claimed as bilateral hearing loss).

2.  The additional evidence received since the March 1989
rating decision raises a reasonable possibility of
substantiating the veteran's bilateral hearing loss claim on
the merits.

CONCLUSION OF LAW

The March 1989 rating decision denying service connection for
bilateral hearing loss is final.  New and material evidence
has been submitted since that decision to reopen this claim.
38 U.S.C.A. �� 5108, 7105 (West 2002); 38 C.F.R. �� 3.104,
3.156, 20.1103 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified at 38 U.S.C.A. �� 5100, 5102, 5103A, 5106,
5107, and 5126, was signed into law on November 9, 2000.
Implementing regulations were created, codified at 38 C.F.R.
�� 3.102, 3.156(a), 3.159, and 3.326 (2007).  The legislation
has eliminated the well-grounded claim requirement, has
expanded the duty of VA to notify the appellant and the
representative, and has enhanced VA's duty to assist an
appellant in developing the information and evidence
necessary to substantiate a claim.  See generally VCAA.
Given the disposition reached in this case, the Board finds
that VA has met its VCAA duty to assist the veteran in the
development of his new and material evidence claim on appeal.

Pertinent Laws and Regulations

Finality / new and material evidence

In general, rating decisions that are not timely appealed are
final and binding based on the evidence then of record.  See
38 U.S.C.A. � 7105 (West 2002); 38 C.F.R. �� 3.104, 20.1103
(2007).  A claim which has been denied in an unappealed RO
decision may not thereafter be reopened and allowed.  38
U.S.C.A. � 7105(c) (West 2002).  The exception to this rule
is 38 U.S.C.A. � 5108 (West 2002), which provides that if new
and material evidence is presented or secured with respect to
a claim which has been disallowed, the Secretary shall reopen
the claim and review the former disposition of the claim.

The Board notes that there has been a regulatory change with
respect to the definition of what constitutes new and
material evidence, which applies prospectively to all claims
made on or after August 29, 2001.  See 66 Fed. Reg. 45,620-30
(Aug. 29, 2001) [codified at 38 C.F.R. � 3.156(a)].  In the
current case, evidence construed as a claim to reopen was
received in January 2005, subsequent to that date.
Therefore, the current version of the law, which is set forth
in the following paragraph, is applicable in this case.

New evidence means existing evidence not previously submitted
to agency decision-makers.  Material evidence means existing
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 prior 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) (2007).

A VA adjudicator must follow a two-step process in evaluating
a previously denied claim.  First, the adjudicator must
determine whether the evidence added to the record since the
last final decision is new and material.  If new and material
evidence is presented or secured with respect to a claim that
has been finally denied, then the claim will be reopened and
decided upon the merits.  Once it has been determined that a
claimant has produced new and material evidence, the
adjudicator must evaluate the merits of the claim in light of
all of the evidence, both new and old, after ensuring that
VA's statutory duty to assist the claimant in the development
of his claim has been fulfilled.  See 38 U.S.C.A. � 5108
(West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-
Gonzalez v. West, 12 Vet. App. 321, 328 (1999).

For the limited purpose of determining whether new and
material evidence has been submitted, the credibility of the
newly submitted evidence is presumed.  See Justus v.
Principi, 3 Vet. App. 510, 513 (1992).

Service connection - in general

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. �
3.303(a) (2007).  In addition, service connection may be
granted for any disease diagnosed after discharge, when all
of the evidence, including that pertinent to service,
establishes that the disease was incurred in service.  38
C.F.R. � 3.303(d).

In order to establish service connection for the claimed
disorder, there must be: (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of the in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
current disability.  See Hickson v. West, 12 Vet. App. 247,
253 (1999).

Service connection - hearing loss

For certain chronic disorders, per se, including
sensorineural hearing loss, service connection may be granted
if the disease becomes manifest to a compensable degree
within one year following separation from service.  38
U.S.C.A. �� 1101, 1110, 1112, 1113, 1131, 1133, 1137 (West
2002); 38 C.F.R. �� 3.307, 3.309 (2007).  However, this
presumption is rebuttable by probative evidence to the
contrary.

Impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or
greater; or when the auditory thresholds for at least three
of these frequencies 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 (2007).

Factual background

In March 1989, the RO denied service connection for ears
(later claimed as bilateral hearing loss) on the basis that
the evidence failed to show that the disability was incurred
in service.

The veteran was informed of the March 1989 decision denying
service connection by letter in March 1989.  He did not file
a timely appeal; hence, that decision is final and binding on
him based on the evidence then of record.  See 38 U.S.C.A. �
7105(c) (West 2002); 38 C.F.R. �� 3.104; 20.1103 (2007).

The "old" evidence

Evidence of record at the time of the March 1989 rating
decision consisted of the veteran's service medical records.

The service medical records include audiograms dated in
August 1974, December 1974, January 1976, September 1977, and
March 1981; these audiograms all show the veteran's hearing
to be within normal limits.  However, an incomplete
audiometric evaluation dated in May 1975 shows significant
bilateral hearing loss.  (Notably, during his Travel Board
hearing in January 2008, the veteran testified that this May
1975 hearing test was conducted after a cannon explosion.
See Travel Board Hearing Transcript at page 6.)
Nevertheless, a November 1976 audiogram shows mild hearing
loss in the left ear, and a January 1985 discharge
examination (also referred to as a Chapter 16 examination)
shows mild to moderate bilateral hearing loss.

Analysis

The unappealed March 1989 rating decision that denied service
connection for bilateral hearing loss is final.  See 38
U.S.C.A. � 7105; 38 C.F.R. � 20.1103 (2007).  As explained
above, the veteran's claim for service connection may be
reopened if he submits new and material evidence.  See 38
U.S.C.A. � 5108; 38 C.F.R. � 3.156(a) (2007).  Therefore, the
Board's inquiry will be directed to the question of whether
any additionally submitted evidence (i.e., since March 1989)
raises a reasonable possibility of substantiating this claim,
namely whether bilateral hearing loss was incurred in
service.

The additional evidence submitted in this case includes a
January 2006 letter from the veteran's private physician, Dr.
E.D.  In this letter, the doctor refers to the veteran's
private audiogram from November 2005 and states, "[The
veteran] may have been exposed to very loud noise while in
the service which may account for his sensorineural hearing
loss in both ears..."  See Letter from Dr. E.D., January 6,
2006.

This January 2006 letter from Dr. E.D. is new and material
evidence because it suggests that the veteran's bilateral
hearing loss was incurred in service.  Accordingly, this
claim is reopened.  See 38 C.F.R. � 3.156 (2007).

Keep in mind, though, that although this additional evidence
is sufficient for the limited purpose of reopening this
claim, it ultimately may not be sufficient to permit the
granting of this claim.  See Hodge v. West, 155 F.3d 1356
(Fed. Cir. 1998).  This is yet to be determined, and this
claim will not be readjudicated until completion of the
additional development on remand.

ORDER

New and material evidence having been submitted, the claim of
entitlement to service connection for bilateral hearing loss
is reopened; to that extent only, the appeal is granted.

REMAND

Having reopened the claim of service connection for bilateral
hearing loss, VA has a duty to assist the veteran in the
development of evidence pertinent to this claim under 38
U.S.C.A. � 5107(b) (West 2002).

Although the January 2006 letter from Dr. E.D. was sufficient
to reopen this claim, it is not sufficient alone to enable
the Board to grant this claim.  The VCAA and its implementing
regulations require VA to provide a veteran with an
examination or to obtain a medical nexus opinion based upon a
review of the evidence of record if VA determines that such
measures are necessary to decide the claim on appeal.  See 38
U.S.C.A. � 5103A; 38 C.F.R. � 3.159(c)(4); see also Charles
v. Principi, 16 Vet. App. 370 (2002).

Competent medical evidence shows that the veteran currently
does have bilateral hearing loss as well as tinnitus.  During
a June 2005 VA medical examination, the veteran was diagnosed
with a "hearing problem" and "popping or tinnitus."  See
VA Examination Report, June 7, 2005.  Furthermore, during a
November 2005 private medical examination, the veteran was
diagnosed with moderate to severe bilateral sensorineural
hearing loss.  See Letter from Dr. M.D.W., November 18, 2005.

The Board acknowledges the evidence contained in the service
medical records, including several audiograms showing varying
degrees of hearing loss as well as multiple reports
documenting the veteran's complaints of hearing loss and
popping sounds in both ears.

However, with regard to a medical nexus between any bilateral
hearing loss or tinnitus that may have been incurred in
service and the veteran's current such disabilities, the
evidence of record is not probative.  Specifically, the June
2005 VA examiner stated: "After reviewing [the veteran's] C-
folder and all the discussion I have done during my exam[,]
including multiple audiograms, I would have to say that for
me it will be highly speculative to say whatever hearing loss
and popping noise are due to noise exposure [in service] or
not.  For me to give an exit opinion, it is very essential
that I get a very, very reliable audiogram and which is not
existing at present.  So, I would have to say that I cannot
resolve this problem without mere speculation."  See VA
Examination Report, June 7, 2005.  Additionally, in his
January 2006 letter, Dr. E.D. reviewed the audiogram
conducted by Dr. M.D.W. in November 2005 and stated: "[The
veteran] may have been exposed to very loud noise while in
the service which may account for his sensorineural hearing
loss in both ears, the left more than the right."  See
Letter from Dr. E.D., January 6, 2006.  (To this end, the
Board notes a potential contradiction in the private medical
evidence: the November 2005 private examination report
characterizes the veteran's bilateral sensorineural hearing
loss "with the right being greater than the left."  See
Letter from Dr. M.D.W., November 18, 2005.)

In the Board's view, the medical opinions quoted above are
too speculative to be probative.  See Bostain v. West, 11
Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App.
30, 33 (1993) (medical opinion expressed in terms of "may"
also implies "may or may not" and is too speculative to
establish medical nexus); see also Warren v. Brown, 6 Vet.
App. 4, 6 (1993) (doctor's statement framed in terms such as
"could have been" is not probative); Tirpak v. Derwinski, 2
Vet. App. 609, 611 (1992) ("may or may not" language by
physician is too speculative).  In addition, Dr. E.D.'s
January 2006 opinion only applied to the veteran's bilateral
hearing loss, and was silent with regard to his tinnitus.  In
view of these developments, a new VA examination and nexus
opinion are warranted in order to fully and fairly evaluate
both claims on appeal.

During his Travel Board hearing in January 2008, the veteran
testified that he had undergone a more recent VA audiological
test in either late 2006 or early 2007, when he presented at
the VA Medical Center (VAMC) in Baltimore, Maryland with
complaints about his ears.  See Travel Board Hearing
Transcript at pages 10-12, 17, 19-20.  The veteran also
testified that he had presented at the VAMC in Fayetteville,
North Carolina with complaints about his ears approximately
five or six times between the years of 1985 and 1989.  See
id. at pages 23-25, 27, 32-34.  In addition, the veteran
testified that he had presented at the VAMC in Columbia,
South Carolina with complaints about his ears several times
between the years of 1988 and 1991.  See id. at pages 25, 27-
29, 32-35.

Accordingly, this case is REMANDED for the following actions:

1.  The RO should contact the VAMC in
Fayetteville and request that it provide
any records pertaining to the veteran
from 1985 to 1989.  Associate this
request and all records received with the
claims file.  If records are unavailable,
then a negative reply is requested.

2.  The RO should contact the VAMC in
Columbia and request that it provide any
records pertaining to the veteran from
1988 to 1991.  Associate this request and
all records received with the claims
file.  If records are unavailable, then a
negative reply is requested.

3.  The RO should contact the VAMC in
Baltimore and request that it provide any
records pertaining to the veteran from
2004 to the present, including any
audiological test results from late 2006
or early 2007.  Associate this request
and all records received with the claims
file.  If records are unavailable, then a
negative reply is requested.

4.  After associating with the claims
folder all available records received
pursuant to the above-requested
development, the veteran must be afforded
an appropriate VA examination to
determine the nature, extent and etiology
of his bilateral hearing loss and
tinnitus disabilities.  It is imperative
that the examiner who is designated to
examine the veteran reviews the evidence
in the claims folder, including a
complete copy of this REMAND, and
acknowledges such review in the
examination report.  All necessary tests
should be conducted.  The physician is
requested to offer an opinion as to:

(a).  Does the veteran have bilateral
hearing loss and/or tinnitus?  If so,
state the diagnosis or diagnoses.

(b).  If the examiner finds that the
veteran has bilateral hearing loss
and/or tinnitus, is it as least as
likely as not (50 percent or more)
that such disorder(s) are related to
his periods of active service from
September 1974 to November 1977 and/or
from November 1978 to January 1985?

The physician should set forth the
complete rationale underlying any
conclusions drawn or opinions expressed,
to include, as appropriate, citation to
specific evidence in the record, in a
legible report.  A complete rationale
should be given for all opinions and
should be based on examination findings,
historical records, and medical
principles.

5.  After completion of the foregoing and
after undertaking any further development
deemed warranted by the record, the RO
must adjudicate the veteran's claim of
entitlement to service connection for
bilateral hearing loss and tinnitus on
the merits.  If any determination remains
adverse to the veteran, then he and his
representative should be furnished with a
Supplemental Statement of the Case and
should be afforded a reasonable period of
time within which to respond thereto.

The veteran has the right to submit additional evidence and
argument on the matter or matters that 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. 2007).

______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: ALAN S PEEVY

disposition: denied

text: The appeal is denied as to both issues.

text:
Citation Nr: 0811000
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  05-19 716	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California

THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

S. Lipstein, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1943 to July
1946.

This matter comes to the Board of Veterans' Appeals (Board)
from an April 2005 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO).  A notice of
disagreement was filed in May 2005, a statement of the case
was issued in May 2005, and a substantive appeal was received
in June 2005.  The veteran's case is currently advanced on
the docket, pursuant to his motion and the requirements of 38
C.F.R. � 20.900(c) (2007).

FINDINGS OF FACT

1.  Hearing loss disability was not manifested during service
or for many years after service, nor is hearing loss
disability otherwise causally or etiologically related to
service.

2.  Tinnitus disability was not manifested during service or
for many years after service, nor is tinnitus disability
otherwise causally or etiologically related to service.

CONCLUSIONS OF LAW

1.  Hearing loss was not incurred in or aggravated by
service, nor may sensorineural hearing loss, as an organic
disease of the nervous system, be presumed to have been
incurred in service.  38 U.S.C.A. �� 1101, 1110, 1154, 5103,
5103A, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.159, 3.303,
3.304, 3.307, 3.309, 3.385 (2007).

2.  Tinnitus disability was not incurred in or aggravated by
service.  38 U.S.C.A. �� 1110, 1154, 5103, 5103A, 5107 (West
2002); 38 C.F.R. �� 3.102, 3.159, 3.303 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before addressing the merits of the veteran's claims on
appeal, the Board is required to ensure that the VA's "duty
to notify" and "duty to assist" obligations have been
satisfied.  See 38 U.S.C.A. �� 5103, 5103A (West 2002); 38
C.F.R. � 3.159 (2007) Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112
(2004).  The notification obligation in this case was
accomplished by way of a letter from the RO to the veteran
dated in February 2005.  While this notice does not provide
any information concerning the evaluation or the effective
date that could be assigned should service connection be
granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), since
this decision affirms the RO's denial of service connection,
the veteran is not prejudiced by the failure to provide him
that further information.

The RO also provided assistance to the veteran as required
under 38 U.S.C.A. � 5103A and 38 C.F.R. � 3.159(c), as
indicated under the facts and circumstances in this case.
The evidence of record contains the some of the veteran's
service medical records, post-service VA medical records, and
post-service private medical records.  The evidence of record
also contains a report of VA examination performed in March
2005.  The March 2005 examination report obtained is thorough
and contains sufficient information to decide the issues on
appeal.  See Massey v. Brown, 7 Vet. App. 204 (1994).  The
veteran and his representative have not made the RO or the
Board aware of any additional evidence that needs to be
obtained in order to fairly decide this appeal, and have not
argued that any error or deficiency in the accomplishment of
the duty to notify and duty to assist has prejudiced him in
the adjudication of his appeal.  Mayfield v. Nicholson, 19
Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157
(Fed. Cir. Apr. 5, 2006).  Therefore, the Board finds that
duty to notify and duty to assist have been satisfied and
will proceed to the merits of the veteran's appeal.

For all the foregoing reasons, the Board concludes that VA's
duties to the veteran have been fulfilled with respect to the
issues on appeal.

Criteria & Analysis

Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from injury suffered or disease
contracted in line of duty, or for aggravation of a pre-
existing injury suffered or disease contracted in the line of
duty, in the active military, naval or air service.  38
U.S.C.A. � 1110, 38 C.F.R. �� 3.303, 3.304, 3.306.  Service
connection may also be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d).

Certain chronic disabilities, such as organic diseases of the
nervous system, are presumed to have been incurred in service
if manifest to a compensable degree within one year of
discharge from service.  38 U.S.C.A. �� 1101, 1112, 1133; 38
C.F.R. �� 3.307, 3.309.  In an October 4, 1995, opinion, VA's
Under Secretary for Health determined that it was appropriate
to consider high frequency sensorineural hearing loss an
organic disease of the nervous system and therefore a
presumptive disability.

The veteran has claimed entitlement to hearing loss and
tinnitus due to exposure to noise from artillery during
active service.

For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or
when the auditory thresholds for at least three of the
frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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.

A service Report of Physical Examination for separation
purposes dated in July 1946 reflects that the veteran scored
15/15 on the whispered voice test for both ears.  His ears,
nose, and throat were clinically evaluated as normal.  No
additional service medical records were available for review.
Efforts to obtain service medical records from all potential
sources were unsuccessful.  The National Personnel Records
Center (NPRC), St. Louis, Missouri, in response to VA
requests, reported the records may have been destroyed in a
fire at the Records Center in 1973.  NPRC could not confirm
the existence of such records; only the fact that if they had
been stored at the Records Center, they would have been
stored in an area damaged by the fire.

VA outpatient treatment records dated in December 2004
reflect that the veteran was assessed with severe to profound
sensorineural hearing loss in the right ear and moderate to
profound sensorineural hearing loss in the left ear.

The veteran underwent a VA examination in March 2005.  He
reported hearing difficulty in the right ear for over 40
years, and hearing loss in the left ear for over 20 years.
He stated his history of noise exposure while in the service
included exposure to artillery fire, rifle fire, mortar
rounds, and near-by bomb explosions while in combat in World
War II.  He claimed that, as a civilian, he worked for 30
years driving heavy equipment and running "big saws"
without hearing protection.  He reported a history of ear
infections in the right ear over the previous 10 years.  He
stated that he could not recall a specific date of onset of
tinnitus, however, he has had constant ringing in his ears
bilaterally for approximately 10 years.

Audiometric testing showed pure tone thresholds, in decibels,
as follows, with a right ear average of 95+ decibels and a
left ear average of 61 decibels:

HERTZ

500
1000
2000
3000
4000
RIGHT
80
95
105+
105+
105+
LEFT
40
45
55
65
80

The examiner opined that other factors (i.e. age, noise
exposure as a civilian) were the cause of his current hearing
loss and tinnitus and it is not likely that current hearing
loss or complaint of tinnitus was caused by military acoustic
trauma.

Private medical records from Central Valley ENT dated in June
2006 reflect a diagnosis of mild impairment in the low and
mid frequencies to a severe hearing loss in the high
frequencies for the left ear, and a sloping pattern ranging
from a moderate loss in the low tones to a severe to profound
loss at 2,000 Hertz and above for the right ear.

The record also contains an undated record of treatment with
H. Lee McLeod, Ph.D., CCC-A.  There is no indication that Dr.
McLeod reviewed the available documents from the veteran's
claims file.  Dr. McLeod diagnosed bilateral moderate to
profound sensorineural hearing loss with greater hearing loss
in the right ear.  Dr. McLeod opined that it was as likely as
not that hearing loss resulted from exposure while in the
military when the veteran experienced high levels of noise
exposure during combat.

While the conclusions of a physician are medical conclusions
that the Board cannot ignore or disregard, see Willis v.
Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess
medical evidence and is not compelled to accept a physician's
opinion.  See Wilson v. Derwinski, 2 Vet. App. 614 (1992).  A
medical opinion based upon an inaccurate factual premise is
not probative.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993).
A bare conclusion, even one reached by a medical
professional, is not probative without a factual predicate in
the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  A
bare transcription of lay history, unenhanced by additional
comment by the transcriber, does not become competent medical
evidence merely because the transcriber is a medical
professional.  LeShore v. Brown, 8 Vet. App. 406, 409 (1995).
The Court has held that the value of a physician's statement
is dependent, in part, upon the extent to which it reflects
"clinical data or other rationale to support his opinion."
Bloom v. West, 12 Vet. App. 185, 187 (1999).  Thus, a medical
opinion is inadequate when it is unsupported by clinical
evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995).

It is the responsibility of the Board to weigh the evidence,
including the medical evidence, and determine where to give
credit and where to withhold the same and, in so doing, the
Board may accept one medical opinion and reject others.
Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v.
Brown, 7 Vet. App. 429, 433 (1995).  But, we are mindful that
we cannot make our own independent medical determinations,
and that we must have plausible reasons, based upon medical
evidence in the record, for favoring one medical opinion over
another.  Evans v. West, supra; see also Rucker v. Brown, 10
Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet.
App. 171 (1991).  Thus, the weight to be accorded the various
items of evidence in this case must be determined by the
quality of the evidence, and not necessarily by its quantity
or source.

The Board notes that the March 2005 VA examiner reviewed the
available documents from the veteran's claims file while
there is no indication that Dr. McLeod did so.  Furthermore,
the Board finds it significant that Dr. McLeod's statement
includes no rationale or even recognition of the veteran's
post-service noise exposure.  The Board therefore finds that
the March 2005 VA examination findings are entitled to more
weight than the undated findings by Dr. McLeod.

Additionally, the Board notes that the lack of any evidence
of continuing hearing loss for over 58 years between the
period of active duty and the evidence showing hearing loss
and tinnitus is itself evidence which tends to show that no
hearing loss and tinnitus were incurred as a result of
service.  Moreover, there is no medical evidence showing that
hearing loss manifested itself to a degree of 10 percent or
more within one year from the date of separation from active
service, and therefore service connection for hearing loss
may not be presumed to have had its onset in service.  38
U.S.C.A. �� 1112, 1137; 38 C.F.R. �� 3.307(a)(3), 3.309(a).

A prolonged period without medical complaint can be
considered, along with other factors concerning the
claimant's health and medical treatment during and after
military service, as evidence of whether a disability was
incurred in service or whether an injury, if any, resulted in
any chronic or persistent disability which still exists
currently.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir.
2000).

Further, the "absence" of evidence or "negative" evidence
of any tinnitus and hearing loss during service in this case
is supported by affirmative evidence, consisting of the
separation examination report which included normal
audiometric testing.  Although the veteran has asserted that
his hearing loss and tinnitus are due to acoustic trauma in
service, the fact remains, however, that there is no record
of complaints of hearing loss and tinnitus during service,
and he has not provided any medical evidence, whatsoever,
showing findings or a diagnosis of hearing loss until
December 2004 or tinnitus until he underwent a VA examination
in March 2005.

Finally, the Board believes it significant that the March
2005 medical examiner opined that the current bilateral
hearing loss and tinnitus were not etiologically related to
service.  The Board finds that this opinion is entitled to
more weight than the private opinion since it was based on a
review of the file and included recognition of post-service
noise exposure. The Board has considered the veteran's own
lay statements to the effect that his bilateral hearing loss
and tinnitus are causally related to his active service;
however, it is noted that the veteran has not been shown to
have the medical expertise necessary to render such an
opinion.  Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).

In reaching this determination, the Board is unable to find
such a state of approximate balance of the positive evidence
with the negative evidence to otherwise warrant a favorable
decision for the issues adjudicated by this decision.  38
U.S.C.A. � 5107(b).

ORDER

Service connection for hearing loss is not warranted.

Service connection for tinnitus is not warranted.

The appeal is denied as to both issues.

____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: MILO H HAWLEY

condition: back

text:
Citation Nr: 0812000
Decision Date: 04/10/08    Archive Date: 04/23/08

DOCKET NO.  05-13 779	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUE

Entitlement to an evaluation in excess of 10 percent for
arthritis of the dorsal spine.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

P. Olson, Associate Counsel

INTRODUCTION

The veteran had active military service from June 1953 to May
1955 and from December 1979 to April 1989.

This matter is before the Board of Veterans' Appeals (Board)
following a Board Remand in March 2007.  This matter was
originally on appeal from an August 2004 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Cleveland, Ohio.

In December 2006, the veteran testified at a videoconference
hearing before the undersigned Veterans Law Judge. A
transcript of that hearing is of record.

FINDING OF FACT

The veteran's arthritis of the dorsal spine is manifested by
pain, flexion limited to 65 degrees, full extension, lateral
flexion bilaterally limited to 15 degrees, rotation
bilaterally limited to 15 degrees, limited endurance, muscle
spasm and increased kyphosis; but it is not manifested by
flexion limited to 30 degrees or less or ankylosis.

CONCLUSION OF LAW

The criteria for entitlement to an evaluation of 20 percent
for the service-connected arthritis of the dorsal spine, but
no higher, have been met. 38 U.S.C.A. � 1155 (West 2002 &
Supp. 2007); 38 C.F.R. �� 4.40, 4.45, 4.71a, Diagnostic Code
5291 (2007).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.	Preliminary Matters

The Board has thoroughly reviewed all the evidence in the
veteran's claims folder.  Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, all of the
evidence submitted by the veteran 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
veteran must 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 veteran).

Pursuant to the Board's March 2007 Remand, the Appeals
Management Center scheduled the veteran for a VA examination
and issued a supplemental statement of the case (SSOC).
Based on the foregoing actions, the Board finds that there
has been compliance with the Board's March 2007 Remand.
Stegall v. West, 11 Vet. App. 268 (1998).

II.	Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duties 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. 2007); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

In order to satisfy the duty to notify provisions for an
increased-compensation claim, VA must notify the claimant
that, to substantiate a claim, the claimant must provide, or
ask VA to obtain, medical or lay evidence demonstrating a
worsening or increase in severity of the disability and the
effect that worsening has on the claimant's employment and
daily life.  If the Diagnostic Code under which the claimant
is rated contains criteria necessary for entitlement to a
higher disability rating that would not be satisfied by the
claimant demonstrating a noticeable worsening or increase in
severity of the disability and the effect of that worsening
has on the claimant's employment and daily life (such as a
specific measurement or test result), VA must provide at
least general notice of that requirement to the claimant.
The claimant must be notified that, should an increase in
disability be found, a disability rating will be determined
by applying relevant Diagnostic Codes, which typically
provide for a range in severity of a particular disability
from noncompensable to as much as 100 percent (depending on
the disability involved), based on the nature of the symptoms
of the condition for which disability compensation is being
sought, their severity and duration, and their impact upon
employment and daily life.  The notice must also provide
examples of the types of medical and lay evidence that the
claimant may submit (or ask VA to obtain) that are relevant
to establishing entitlement to increased compensation, e.g.,
competent lay statements describing symptoms, medical and
hospitalization records, medical statements, employer
statements, job application rejections, and any other
evidence showing an increase in the disability or exceptional
circumstances relating to the disability.  Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008).

Letters dated in January 2004 advised the veteran that to
establish entitlement to his increased evaluation for his
service-connected disability, the evidence must show that the
service-connected disability has gotten worse.  A letter
dated in March 2006 advised him of how VA determines
disability ratings and effective dates.  See Dingess v.
Nicholson, 19 Vet. App. 473 (2006).  The veteran was aware
that it was ultimately his responsibility to give VA any
evidence pertaining to the claims.  The March 2006 letter
told him to provide any information or evidence concerning
the level of disability or when it began and gave him
examples of evidence that may affect how assign a disability
evaluation.  See Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004) (Pelegrini II).

The veteran was not specifically advised that he needed to
provide evidence demonstrating the effect that worsening has
on the claimant's employment and daily life or of the
Diagnostic Code criteria necessary for entitlement to a
higher disability rating.

In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit held
that any error by VA in providing the notice required by 38
U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b)(1) is presumed
prejudicial, and that once an error is identified as to any
of the four notice elements the burden shifts to VA to
demonstrate that the error was not prejudicial to the
appellant.  The Federal Circuit stated that requiring an
appellant to demonstrate prejudice as a result of any notice
error is inconsistent with the purposes of both the VCAA and
VA's uniquely pro-claimant benefits system.

Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication.  To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating:  (1) that any defect was cured by actual
knowledge on the part of the claimant.  "Actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrate an awareness of
what was necessary to substantiate his or her claim." Dalton
v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a
reasonable person could be expected to understand from the
notice what was needed; or (3) that a benefit could not have
been awarded as a matter of law.  Sanders, 487 F.3d at 889.
Additionally, consideration also should be given to "whether
the post-adjudicatory notice and opportunity to develop the
case that is provided during the extensive administrative
appellate proceedings leading to the final Board decision and
final Agency adjudication of the claim ... served to render any
pre-adjudicatory section 5103(a) notice error non-
prejudicial."

In this case, the Board finds that the notice error did not
affect the essential fairness of the adjudication because the
statement of the case issued in February 2005 provided the
contents of the Diagnostic Codes discussed herein.  Presuming
that he read the documents pertinent to his claim, he has had
actual knowledge of the contents of the Diagnostic Codes in
question.

The veteran's service medical records and VA medical
treatment records have been obtained, to the extent
available.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  The
veteran was also accorded a VA examination in October 2007.
38 C.F.R. � 3.159(c)(4).  There is no indication in the
record that any additional evidence, relevant to the issues
decided herein, is available and not part of the claims file.

As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006).

III.	Increased Rating

Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower rating will be assigned.  38 C.F.R. �
4.7.

When, as here, the veteran is requesting a higher rating for
an already established service-connected disability, the
present disability level is the primary concern and past
medical reports do not take precedence over current findings.
See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the
Court recently held that "staged" ratings are appropriate
for an increased rating claim when the factual findings show
distinct time periods where the service-connected disability
exhibits symptoms that would warrant different ratings.  Hart
v. Mansfield, 21 Vet. App. 505 (2007).

The veteran's arthritis of the dorsal spine is currently
evaluated as 10 percent disabling and was initially evaluated
pursuant to 38 C.F.R. � 4.71a, Diagnostic Codes 5010-5291.
Hyphenated diagnostic codes are used when a rating under one
diagnostic code requires use of an additional diagnostic code
to identify the specific basis for the evaluation assigned.
Diagnostic Code 5010 refers to traumatic arthritis while the
more specific Diagnostic Code 5291 referred to limitation of
dorsal spine motion.

Arthritis due to trauma is rated as degenerative arthritis.
38 C.F.R. � 4.71a, Diagnostic Code 5010.  Degenerative
arthritis established by x-ray findings is rated according to
limitation of motion for the joint or joints involved.  Where
limitation of motion is noncompensable, a rating of 10
percent is assigned for each major joint or group of minor
joints affected by limitation of motion to be combined not
added under Diagnostic Code 5003.  Limitation of motion must
be objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion.  In the
absence of limitation of motion a 10 percent rating is
assigned where there is x-ray evidence of involvement of two
or more major joints, or two or more minor joint groups; and
a 20 percent evaluation is assigned where there is x-ray
evidence of involvement of two or more major joints or two or
more minor joint groups and occasional incapacitating
exacerbations.  38 C.F.R. � 4.71a, Diagnostic Code 5003.

The veteran's request for an increase evaluation for his
service-connected dorsal spine disability was received in
December 2003.  The Board notes that the schedular criteria
for rating the spine were amended effective September 26,
2003.  Under the amended regulations effective September 26,
2003, the evaluation criteria for rating disabilities of the
spine were revised by establishing a general rating formula
that applies to all diseases and injuries of the spine.  The
seven Diagnostic Codes 5286 through 5292 that involved
findings of ankylosis or limitation of motion of the spine
were deleted.  The amended regulations added degenerative
arthritis of the spine, DC 5242, which will ordinarily be
evaluated under the general rating formula for diseases and
injuries of the spine except when X-ray findings, as
discussed under DC 5003, are the sole basis of its
evaluation. Under the amended regulations, new diagnostic
codes were assigned for conditions already in the Rating
Schedule.

The Board notes that under the revised criteria, there is no
specific Diagnostic Code that only addresses the dorsal
(thoracic) spine.  Rather, the criteria evaluate the thoracic
and lumbar spine together.

The amended version of the rating criteria, as pertains to
the thoracic spine, provides as follows:

With or without symptoms such as pain (whether or not it
radiates), stiffness, or aching in the area of the spine
affected by residuals of injury or disease, the general
rating formula provides that unfavorable ankylosis of the
entire spine warrants a 100 percent evaluation.

Unfavorable ankylosis of the entire thoracolumbar spine
warrants a 50 percent evaluation.

Forward flexion of the thoracolumbar spine limited to 30
degrees or less, or favorable ankylosis of the entire
thoracolumbar spine warrants a 40 percent evaluation.

Forward flexion of the thoracolumbar spine greater than 30
degrees but not greater than 60 degrees; or the combined
range of motion of the thoracolumbar spine not greater than
120 degrees; or muscle spasm or guarding severe enough to
result in an abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis warrants a
20 percent evaluation.

Forward flexion of the thoracolumbar spine greater than 60
degrees but not greater than 85 degrees; or combined range of
motion of the thoracolumbar spine greater than 120 degrees
but not greater than 235 degrees; or muscle spasm, guarding,
or localized tenderness not resulting in abnormal gait or
abnormal spinal contour; or vertebral body fracture with loss
of 50 percent or more of the height warrants a 10 percent
evaluation.

The notes to the General Rating Formula are:

Note (1): Evaluate any associated objective neurologic
abnormalities, including, but not limited to, bowel or
bladder impairment, separately, under an appropriate
diagnostic code.

Note (2): (See also Plate V.)  For VA compensation purposes,
normal forward flexion of the thoracolumbar spine is zero to
90 degrees, extension is zero to 30 degrees, left and right
lateral flexion are zero to 30 degrees, and left and right
lateral rotation are zero to 30 degrees.  The combined range
of motion refers to the sum of the range of forward flexion,
extension, left and right lateral flexion, and left and right
rotation. The normal combined range of motion of the
thoracolumbar spine is 240 degrees.  The normal ranges of
motion for each component of spinal motion provided in this
note are the maximum that can be used for calculation of the
combined range of motion.

Note (3): In exceptional cases, an examiner may state that
because of age, body habitus, neurologic disease, or other
factors not the result of disease or injury of the spine, the
range of motion of the spine in a particular individual
should be considered normal for that individual, even though
it does not conform to the normal range of motion stated in
Note (2).  Provided that the examiner supplies an
explanation, the examiner's assessment that the range of
motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the
nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis
is a condition in which the entire thoracolumbar spine is
fixed in flexion or extension, and the ankylosis results in
one or more of the following: difficulty walking because of a
limited line of vision; restricted opening of the mouth and
chewing; breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment in
neutral position (zero degrees) always represents favorable
ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar
and cervical spine segments, except when there is unfavorable
ankylosis of both segments, which will be rated as a single
disability.

The veteran was afforded a VA examination in October 2007 to
assess the severity of his service-connected dorsal spine
disability.  The veteran complained of increased back pain,
ache, soreness, tenderness, and stiffness.  The veteran
reported that prolonged standing, repetitive bending and
lifting and weather changes bother and irritate him.  The
examiner noted that the veteran had some definite limited
endurance.  The veteran reported that flare-ups occur with
repetitive use, but reported no incapacitating episodes in
the past year.

Examination of the back demonstrated increased kyphosis.  The
veteran had tenderness over the dorsal spine.  Flexion was to
65 degrees, extension to zero degrees, lateral flexion
bilaterally and lateral rotation bilaterally were to 15
degrees.  The examiner noted that there was pain throughout
the range of motion and spasm and tenderness over the dorsal
spine.  The examiner also noted that repetitive use caused
increasing symptoms but there was no change noted at the
examination. The examiner noted that there was no radicular
component, and sensorimotor examination was normal.

Applying the rating criteria effective from September 2003
for the veteran's service-connected arthritis of the dorsal
spine, the range of motion falls under the 10 percent
disability rating.  The 20 percent rating, however, includes
in its criteria muscle spasm or guarding severe enough to
result in an abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis.
Additionally, evaluation of a service-connected disability
involving joints based on limitation of motion requires
adequate consideration of functional loss due to pain under
38 C.F.R. � 4.40, and of functional loss due to weakness,
fatigability, incoordination or pain on movement of the joint
under 38 C.F.R. � 4.45.  See DeLuca v. Brown, 8 Vet. App. 202
(1995).

Based on the medical evidence indicating muscle involvement
and increased kyphosis, and giving due consideration to the
veteran's reported back pain, the Board concludes that a 20
percent rating is appropriate for the veteran's service-
connected arthritis of the dorsal spine.  See 38 C.F.R. �
4.71a, Diagnostic Codes 5003, 5010, and 5242 (2007).

However, an evaluation in excess of 20 percent for the
veteran's service-connected arthritis of the dorsal spine is
not warranted as the veteran has not demonstrated forward
flexion of the thoracolumbar spine limited to 30 degrees or
less, ankylosis, or separate neurological abnormalities
associated with his service-connected arthritis of the dorsal
spine.

The Board notes that there is no evidence of record that the
veteran's service connected arthritis of the dorsal spine
causes marked interference with employment (i.e., beyond that
already contemplated in the assigned evaluation), or
necessitated any frequent periods of hospitalization, such
that application of the regular schedular standards is
rendered impracticable. The Board emphasizes that the
percentage ratings assigned by the VA Schedule for Rating
Disabilities represent the average impairment in earning
capacity resulting from a service- connected disability. 38
C.F.R. � 4.1.  In the instant case, there is no evidentiary
basis in the record for a higher rating on an extraschedular
basis as there is no evidence that the veteran is unable to
secure or follow a substantially gainful occupation solely as
a result of his dorsal spine disability.  Hence the Board is
not required to remand this matter to the RO for the
procedural actions outlined in 38 C.F.R. � 3.321(b)(1) for
assignment of an extraschedular evaluation.

ORDER

Entitlement to an evaluation of 20 percent, but no higher,
for arthritis of the dorsal spine is granted subject to the
law and regulations governing the payment of monetary
benefits.
.

____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: J A MARKEY

disposition: remanded

text:
Citation Nr: 0813000
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  03-27 273	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida

THE ISSUE

Entitlement to service connection for flat feet condition
(claimed as bilateral arch condition).

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Clifford R. Olson, Counsel

INTRODUCTION

The veteran's active service extended from June 4, 1979 to
July 9, 1979.

This matter comes before the Board of Veterans' Appeals
(Board) from a March 2003 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.

The Board previously denied the claim, in June 2004.  The
veteran subsequently appealed to the United States Court of
Appeals for Veterans Claims (Court).  Pursuant to a motion,
the Court remanded the matter to the Board.  The remand
motion asserted that a medical examination and opinion were
needed.  In December 2006, the Board remanded the case for
examination and a medical opinion.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the
appellant if further action is required.

REMAND

The Veterans Claims Assistance Act of 2000 (VCAA) requires VA
to obtain all pertinent Federal records.  38 U.S.C.A. � 5103A
(West 2002).  One problem in this case is that the evidence
does not contain a report of the entrance examination.
Further, despite evidence that the veteran was released from
service because of her foot condition, there are no medical
board or physical evaluation board reports in the record.  It
is quite possible that because the veteran was released from
service for medical reasons, the pertinent medical records
are in her personnel records.  These should be searched and
there is no indication in the record that this has been done.

Further, although the veteran was examined in compliance with
the Board's remand, the examiner stated that he was unable to
provide the necessary opinions and failed to fully explain
his reasoning for the comments he did provide.  Under these
circumstances, it is not necessary to have another
examination of the veteran, but the file, including the
examination report, should be sent for a medical opinion in
compliance with the Board's previous remand.  See Stegall v.
West, 11 Vet. App. 268 (1998).

Also, compensation can be paid for an acquired flat foot
condition, but a congenital or developmental condition cannot
be service-connected.  38 C.F.R. �� 3.303(c), 4.9, 4.71a
(2007).  This case requires an opinion as to the nature of
the disability.

Accordingly, the case is REMANDED for the following action:

1.  The agency of original jurisdiction
(AOJ) should ask the National Personnel
Records Center (NPRC) for a complete
copy of the veteran's personnel file,
not just the DA 20.  All records
pertaining to her discharge from
service and any medical records that
may be in the personnel file should be
particularly requested.

2.  After the requested records are
received, or the NPRC verifies that
such records do not exist, the claims
folder should be forwarded to a
specialist in foot disorders for
review.  Any tests or studies necessary
to respond to the following questions
should be done.  If the reviewer cannot
respond to the following questions
without further examination of the
appellant, such examination should be
scheduled.  The examiner should respond
to the following questions with a
complete explanation.

a.  Is it at least as likely as not (a
50 percent or greater probability) that
the foot condition noted in service was
acquired, rather than being congenital
or developmental?

b.  Is it at least as likely as not
that the current foot condition was
acquired, rather than being congenital
or developmental?

c.  The veteran entered service on June
4, 1979 and 4 days later, on June 8,
1979, complained that a callus on the
left foot was extremely painful when
walking.  Examination disclosed flat
feet.  Given the service medical
records, the evidence of record, and
the current findings:

        Is it at least as likely as not
(probability of 50 percent or better)
that her flat foot condition and callus
had their onset during her active
service?  Please explain.

        If it is not at least as likely as
not that her flat foot condition and
callus had their onset during her
active service, is there clear and
unmistakable evidence that the
condition existed before service?  If
so, what would that evidence be?
Please explain.

d.  The veteran entered service on June
4, 1979 and 4 days later, on June 8,
1979, complained that a callus on the
left foot was extremely painful when
walking.  There was a complaint of pain
in both feet on June 10, 1979, and a
subsequent podiatry referral reflects
complaints of pain in both feet while
running or jogging.  Given the service
medical records, the evidence of
record, and the current findings:

        Is there clear and unmistakable
evidence that her flat foot condition
did not permanently increase in
severity during her active service?  If
so, what would that evidence be?
Please explain.

3.  Readjudicate the claim for service
connection for flat feet.  If the
determination remain unfavorable to the
appellant, she and her representative
should be furnished a supplemental
statement of the case which addresses
all evidence associated with the claims
file since the last statement of the
case.  The appellant and her
representative should be afforded the
applicable time period in which to
respond.

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. 2007).

_________________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2007).


judge_norm: MICHAEL E KILCOYNE

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).

text:
Citation Nr: 0814000
Decision Date: 04/29/08    Archive Date: 05/08/08

DOCKET NO.  05-03 648	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to an initial compensable rating for left ear
hearing loss.

2.  Entitlement to service connection for right ear hearing
loss.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Amy M. Smith, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1967 to August
1969.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2004 rating action of the
Department of Veterans Affairs Regional Office (RO) in
Montgomery, Alabama.

The veteran's claims are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.  VA will notify
the appellant if further action is required.

REMAND

In his January 2004 claim for compensation, the veteran
indicated relevant treatment at the VA Medical Center in
Biloxi, Mississippi and Pensacola VA Clinic from 2002-2004.
The records that were then obtained do not appear to be those
of this claimant.  To ensure an accurate decision, another
attempt to obtain this veteran's records should be made,
after which he should be examined for VA purposes.

Accordingly, the case is REMANDED for the following action:

1.	The RO should attempt to obtain copies
of all audiological treatment of this
veteran at the Biloxi VA Medical Center
and Pensacola VA Clinic since 2002.
All efforts to obtain VA records should
be fully documented, and the VA
facility should provide a negative
response if records are not available.

2.	Thereafter, the veteran should be
scheduled for a VA audiological
examination to determine the nature and
extent of his service-connected left
ear hearing loss as well as any right
ear hearing loss .  The claims folder
should be made available to the
examiner in conjunction with the
examination.

In addition, the examiner is asked to
express an opinion as to the cause of
any right ear hearing loss, and in
particular whether it is at least as
likely as not, i.e., a 50 percent
probability or greater, that any
diagnosed right ear hearing loss is
related to any events in military
service, including duties as a
helicopter repairman.

3.	Following completion of the above, the
RO should again review the record.  If
any benefit sought on appeal remains
denied, the veteran and his
representative should be furnished a
supplemental statement of the case and
given an opportunity to respond
thereto.

The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner.  See 38
U.S.C.A. �� 5109B, 7112 (West Supp. 2007).

_________________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board is appealable to the Court.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2007).