judge_norm: HOLLY E MOEHLMANN

text:
Citation Nr: 0830000
Decision Date: 09/04/08    Archive Date: 09/10/08

DOCKET NO.  07-10 443	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Fargo, North Dakota

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	North Dakota Department of
Veterans Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. L. Anderson, Associate Counsel

INTRODUCTION

The veteran had active service from April 1951 to September
1952.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) from an October 2006 rating decision by the above
Department of Veterans Affairs (VA) Regional Office (RO).

The veteran provided testimony at a September 2007 hearing
before the undersigned.  A copy of the transcript is
associated with the claims folder.

FINDING OF FACT

Bilateral hearing loss did not have its onset during active
service, did not manifest within one year of separation from
active service, and is not otherwise etiologically related to
the veteran's active service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for
bilateral hearing loss have not been met.  38 U.S.C.A. ��
1101, 1110, 1111, 1112, 5103A, 5107(b) (West 2002); 38 C.F.R.
�� 3.102, 3.303, 3.307, 3.309 (2007).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits, as codified in pertinent part at 38
U.S.C.A. �� 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. �� 3.102, 3.159, 3.326(a) (2007).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative 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 in accordance
with 38 C.F.R. � 3.159(b)(1).  This notice must be provided
prior to an initial unfavorable decision on a claim by the
RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition,
the decision of the Court in Dingess v. Nicholson, 19 Vet.
App. 473 (2006) requires more extensive notice in claims for
compensation, e.g., as to potential downstream issues such as
disability rating and effective date.

If complete notice is not provided until after the initial
adjudication, such a timing error can be cured by subsequent
legally adequate VCAA notice, followed by readjudication of
the claim, as in a Statement of the Case (SOC) or
Supplemental SOC (SSOC).  Moreover, where there is an uncured
timing defect in the notice, subsequent action by the RO
which provides the claimant a meaningful opportunity to
participate in the processing of the claim can prevent any
such defect from being prejudicial.  Mayfield v. Nicholson,
499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Court of Appeals for the Federal Circuit has held
that, if a claimant can demonstrate error in VCAA notice,
such error should be presumed to be prejudicial.  VA then
bears the burden of rebutting the presumption, by showing
that the essential fairness of the adjudication has not been
affected because, for example, actual knowledge by the
claimant cured the notice defect, a reasonable person would
have understood what was needed, or the benefits sought
cannot be granted as a matter of law.  Sanders v. Nicholson,
487 F.3d 881 (Fed. Cir. 2007); petition for cert. granted
(U.S. June 16, 2008) (No. 07-1209).

In August 2006, VA sent the veteran a letter informing him of
the types of evidence needed to substantiate his claim and
its duty to assist him in substantiating his claim under the
VCAA.  The letter informed the veteran that VA would assist
him in obtaining evidence necessary to support his claim,
such as medical records, employment records, or records from
other Federal agencies.  He was advised that it is his
responsibility to provide or identify, and furnish
authorization where necessary for the RO to obtain, any
supportive evidence pertinent to his claim.  See 38 C.F.R. �
3.159(b)(1).  Although no longer required, the appellant was
also asked to submit evidence and/or information in his
possession to the RO.  Additionally, the August 2006 letter
described how VA calculates disability ratings and effective
dates.  It also provided examples of evidence that the
veteran could use to establish that he had a service-
connected hearing loss disability.

The Board finds that the content of the August 2006 letter
complied with the requirements of 38 U.S.C.A. � 5103(a) and
38 C.F.R. � 3.159(b) regarding VA's duty to notify and
assist.  In addition, the October 2006 rating decision and
February 2007 SOC explained the basis for the RO's action,
and the SOC provided him with additional 60-day periods to
submit more evidence.  It appears that all obtainable
evidence identified by the veteran relative to his claim has
been obtained and associated with the claims file, and that
neither he nor his representative has identified any other
pertinent evidence, not already of record, which would need
to be obtained for a fair disposition of this appeal.  It is
therefore the Board's conclusion that the veteran has been
provided with every opportunity to submit evidence and
argument in support of his claims, and to respond to VA
notices.

Moreover, the claimant has not asserted any error in VCAA
notice, and therefore the presumption of prejudicial error as
to such notice does not arise in this case.  See Sanders v.
Nicholson, supra.

Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertinent to his claim under the VCAA.
Therefore no useful purpose would be served in remanding this
matter for yet more development.  Such a remand would result
in unnecessarily imposing additional burdens on VA, with no
additional benefits flowing to the veteran.  The Court of
Appeals for Veteran Claims has held that such remands are to
be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II.  Service Connection

In the present case, the veteran contends that he has a
bilateral hearing loss disability resulting from acoustic
trauma occurring during active service.

Under the relevant laws and regulations, service connection
may be granted for disability which is the result of disease
or injury incurred in or aggravated by service.  38 U.S.C.A.
�� 1110, 1131 (West 2002); 38 C.F.R. � 3.303(a) (2007).

Where there is a chronic disease shown as such in service or
within the presumptive period under 38 C.F.R. � 3.307 so as
to permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date,
however remote, are service connected, unless clearly
attributable to intercurrent causes.  This rule does not mean
that any manifestation in service will permit service
connection.  To show chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic."  When the disease identity is established, there
is no requirement of evidentiary showing of continuity.  When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim.  38 C.F.R. � 3.303(b).

Service connection may be granted for disease that is
diagnosed after discharge, when all the evidence, including
that pertinent to service, established that the disease was
incurred in service.  38 U.S.C.A. � 1113(b); 38 C.F.R.
� 3.303(d).

The U.S. Court of Appeals for Veterans Claims has held that,
in order to prevail on the issue of service connection, there
must be medical evidence of a (1) current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.
Hickson v. West, 12 Vet. App. 247, 253 (1999).

In addition, the law provides that, where a veteran served
ninety days or more of active military service, and certain
chronic diseases, such as organic diseases of the nervous
system (e.g., sensorineural hearing loss), become manifest to
a degree of 10 percent or more within one year after the date
of separation from such service, such disease shall be
presumed to have been incurred in service, even though there
is no evidence of such disease during the period of service.
38 U.S.C.A. �� 1101, 1112, 1113, 1137; 38 C.F.R. �� 3.307,
3.309(a).  While the disease need not be diagnosed within the
presumption period, it must be shown, by acceptable lay or
medical evidence, that there were characteristic
manifestations of the disease to the required degree during
that time.  Id.

For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or
when the auditory thresholds for at last 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.  Even if disabling hearing loss is not demonstrated
at separation, a veteran may establish service connection for
a current hearing disability by submitting evidence that a
current disability is causally related to service.  See
Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

The veteran's DD Form 214 indicates he served as an auto
mechanic during the Korean War.  He testified during the
September 2007 hearing that he serviced tractors and other
heavy equipment next to an airfield where very noisy jets and
planes landed.  The veteran's testimony is corroborated by an
undated written statement received in June 2006 from N. U., a
fellow veteran, who states that he worked at the same heavy
equipment shop at George Air Force Base from November 1951 to
September 1952, and that the shop was located next to a
runway which "at times was rather loud."  There is no
evidence refuting the veteran's description of his working
environment in the Air Force.  Thus, the Board concedes, for
the purpose of the present decision, that exposure to some
loud noise may have occurred during active service while
performing duties next to a runway.

While some noise exposure is conceded here, this alone cannot
serve as a basis for a grant of service connection.  Rather,
the evidence must show that the current hearing loss is a
result of such in-service exposure.  That has not been
demonstrated here, as will be explained below.

In the present case, the service treatment records are silent
as to any complaints or evidence of hearing loss.  Indeed,
the August 1952 separation report of physical examination
includes the results of hearing tests indicating that hearing
acuity was normal.  Specifically, the whispered voice test
results were 15 out of 15.

Following separation from service, a hearing loss disability
was first demonstrated during a March 1992 audiological
examination.  This is also the first record after separation
from service that demonstrates any symptoms of hearing loss.
In this regard, the Board notes that evidence of a prolonged
period without medical complaint, and the amount of time that
elapsed since military service, can be considered as evidence
against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333
(Fed. Cir. 2000).  The March 1992 test revealed the following
thresholds in decibels at the frequencies 500, 1000, 2000,
and 4000 hertz (Hz), respectively: 30, 35, 50, and 65 for the
right ear, and 35, 45, 55, and 80 for the left ear.  Thus,
the Board finds that the veteran does have a current hearing
loss disability, as defined by the regulations.  See
38 C.F.R. � 3.385.

With regard to the presumptive service connection provisions
in the law for chronic diseases, the evidentiary record
herein is negative for any manifestation of sensorineural
hearing loss within the veteran's first post-service year.
Thus, because the evidence fails to establish any clinical
manifestations of hearing loss within the applicable time
period, the criteria for presumptive service connection on
the basis of a chronic disease are not satisfied.

Moreover, the weight of the competent evidence does not
demonstrate a connection between the veteran's current
hearing loss and active service.

In the present case, the record of evidence contains a
favorable opinion in the form of a September 2006 letter
written by Dr. H. H. H., M.D.  Dr. H. opined that it was more
likely than not the veteran's noise exposure during active
military service caused his hearing loss.

The record of evidence also contains a September 2006 report
of Dr. W. C. P., M.D., to whom the veteran was referred for
an audiogram by Dr. H.  Dr. P. diagnosed moderate to severe
hearing loss caused by presbycusis (age-related factors) and
that the veteran had possible "noise induced hearing loss
from the past," although the doctor did not cite to the
source of such noise exposure.  The veteran reported that he
worked on the flight line in service.

By contrast, a September 2006 VA examination report contains
an opinion opposite that reached by Dr. H.  Specifically, the
examiner opined that the hearing loss was less than likely
related to the veteran's military service, and that post-
service noise exposure was the most likely etiology for the
veteran's hearing loss.

In cases such as this, where there are conflicting statements
or opinions from medical professionals, it is within the
Board's province to weigh the probative value of those
opinions.  In Guerrieri v. Brown, 4 Vet. App. 467, 470-71
(1993), the U.S. Court of Veterans Appeals stated:

The probative value of medical opinion evidence is
based on the medical expert's personal examination
of the patient, the physician's knowledge and skill
in analyzing the data, and the medical conclusion
that the physician reaches. . . . As is true with
any piece of evidence, the credibility and weight
to be attached to these opinions [are] within the
province of the adjudicators; . . .

So long as the Board provides an adequate reason or basis for
doing so, the Board does not err by favoring one competent
medical opinion over another.  See Owens v. Brown, 7 Vet.
App. 429, 433 (1995).  Greater weight may be placed on one
examiner's opinion over another depending on factors such as
reasoning employed by the examiners and whether or not, and
the extent to which they reviewed prior clinical records and
other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40
(1994).  Additionally, the thoroughness and detail of a
medical opinion are among the factors for assessing the
probative value of the opinion.  See Prejean v. West, 13 Vet.
App. 444, 448-9 (2000).

The Board finds that the unfavorable September 2006 opinion
of the VA examiner carries a higher probative weight than the
favorable opinion provided by Drs. H. and P. that same month.
The VA examiner, in addition to reviewing the claims file,
based his opinion on the history provided by the veteran,
including the in-service and post-service noise exposure, as
well as the 30 year gap in time between inception of hearing
loss symptoms (early 1980s, per the veteran) and separation
from service.

By contrast, there is no indication that either Dr. H. or Dr.
P. reviewed the veteran's medical history or claims file as
part of their examinations.  Neither doctor discussed the gap
in time between the veteran's military service and symptoms
of hearing loss disability.  Further, Dr. P. did not opine
that the hearing loss was related specifically to the
veteran's military service.  Finally, Dr. H's opinion is
conclusory and appears to be speculative at best.
Speculative medical opinions are insufficient to establish
service connection.  See Stegman v. Derwinski, 3 Vet. App.
228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611
(1992).

For these reasons, Dr. H. and Dr. P's opinions are found to
be less probative than the September 2006 VA examiner's
opinion.  Accordingly, the greater weight of the probative
evidence fails to demonstrate a causal relationship between
the current hearing loss and acoustic trauma during active
service.

The Board acknowledges that the veteran is competent to give
evidence about what he experienced; for example, he is
competent to discuss his current pain and other experienced
symptoms.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).
Furthermore, lay evidence concerning continuity of symptoms
after service, if credible, is ultimately competent,
regardless of the lack of contemporaneous medical evidence.
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In the present case, the veteran states that his hearing loss
is related to exposure to the noise of planes on the runway
next to his workplace in active service.  During the
September 2006 VA examination, the veteran stated he first
noticed hearing loss symptoms in the early 1980s.  Even if
his statements can be construed as alleging continuity of
symptoms since active service, the history as provided by the
veteran places the inception of hearing loss 30 years after
separation from service.  Moreover, the absence of documented
complaints or treatment for 40 years following military
discharge is more probative than his current recollection as
to symptoms experienced in the distant past.  See Curry v.
Brown, 7 Vet. App. 59 (1994).  Therefore, continuity has not
here been established, either through the competent medical
evidence or through the veteran's statements.

The Board recognizes the veteran's argument that the RO based
its decision in part upon a test which the veteran considers
unreliable, i.e., the whisper voice test.  However, neither
the veteran nor his representative have demonstrated the
requisite medical training to render what amounts to a
medical opinion.  Furthermore, the September 2006 VA examiner
relies not only on the veteran's separation examination, but
also on the history provided by the veteran and review of the
veteran's noise exposure during service in reaching his
conclusion that the veteran's hearing loss is not related to
his active service.  Thus, even if the Board gave credence to
the veteran's argument, the weight of the competent evidence
remains unfavorable.

It is the Board's responsibility to evaluate the entire
record on appeal.  See 38 U.S.C.A. � 7104(a). When there is
an approximate balance in the 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.  38 U.S.C.A. � 5107(b); 38 C.F.R. �
3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail.  The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.

In this case, the weight of the competent evidence does not
support a grant of service connection.  The preponderance of
the evidence is against the claim, and there is no doubt to
resolve in the veteran's favor.

ORDER

Service connection for bilateral hearing loss is denied.

____________________________________________
HOLLY E. MOEHLMANN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: K A BANFIELD

disposition: denied

condition: knee

text:
Citation Nr: 0831000
Decision Date: 09/12/08    Archive Date: 09/22/08

DOCKET NO.  07-05 509	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington,
Delaware

THE ISSUES

1.  Entitlement to service connection for bilateral immersion
foot.

2.  Entitlement to service connection for a right knee
condition.

REPRESENTATION

Appellant represented by:	Delaware Commission of
Veterans Affairs

ATTORNEY FOR THE BOARD

M. H. Stubbs, Associate Counsel

INTRODUCTION

The veteran served on active duty from July 1980 to July
1983.

This case comes before the Board of Veterans' Appeals (Board)
on appeal of two rating decisions, dated in May 2004 and
August 2005, of the Department of Veterans Affairs (VA)
Regional Office (RO).

The veteran's representative initially requested a Travel
Board Hearing in February 2007.  A VA Form 9 received in
March 2007 indicated that the veteran did not want a BVA
hearing. In March 2007 the veteran then indicated he wanted a
Decision Review Officer (DRO) hearing, but the request was
withdrawn in April 2007.

Also, the veteran claimed service connection for diabetes in
March 2007, but a statement signed by the veteran's
representative the same day indicated that the veteran did
not wish to claim diabetes. Subsequent statements signed by
the veteran again request service connection for diabetes.
The RO began development of the claim, then advised the
veteran that no further action would be taken in light of his
March 2007 withdraw.  However, as requests for service
connection for diabetes were submitted by the veteran after
the withdrawal by his representative, clarification is needed
as to whether the veteran, in fact, wishes to claim service
connection for diabetes.  Thus, this matter is REFERRED to
the RO for clarification, and if necessary, appropriate
action.

FINDINGS OF FACT

1. The veteran currently does not have residuals from
bilateral foot immersion.

2. The veteran's current right knee disorder is not
etiologically related to service.

CONCLUSIONS OF LAW

1. Residuals of bilateral immersion foot were not incurred in
or aggravated by active service.  38 U.S.C.A. �� 1131, 5107
(West 2002); 38 C.F.R. �� 3.102, 3.303 (2007).

2.  A right knee condition was not incurred in or aggravated
by active service. 38 U.S.C.A. �� 1131, 5107 (West 2002);
38 C.F.R. �� 3.102, 3.303 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000

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. 2008)) redefined VA's duty to assist a
claimant in the development of a claim. VA regulations for
the implementation of the VCAA were codified as amended at 38
C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a) (2007).

The notice requirements of the VCAA require VA to notify the
appellant of what information or evidence is necessary to
substantiate the claim; what subset of the necessary
information or evidence, if any, the claimant is to provide;
and what subset of the necessary information or evidence, if
any, the VA will attempt to obtain. Sanders v. Nicholson, 487
F.3d 881 (Fed. Cir. 2007).  The requirements apply to all
five elements of a service connection claim: (1) veteran
status, (2) existence of a disability, (3) a connection
between the veteran's service and the disability, (4) degree
of disability, (5) and effective date of the disability.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such
notice must be provided to a claimant before the initial
unfavorable decision on a claim for VA benefits by the agency
of original jurisdiction (in this case, the RO). Id.; see
also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, insufficiency in the timing or content of VCAA
notice is harmless if the errors are not prejudicial to the
claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir.
2004) (VCAA notice errors are reviewed under a prejudicial
error rule); see also Sanders, 487 F.3d 881.

In this case, November 2004 and January 2005 letters,
respectively issued prior to the decisions on appeal, advised
the veteran of what information and evidence is needed to
substantiate a claim for service connection, as well as what
information and evidence must be submitted by the appellant
and the types of evidence that will be obtained by VA.  The
veteran was also provided with notice of the information and
evidence needed to establish a disability rating and an
effective date for his claimed disabilities in a March 2006
letter. The case was last readjudicated in January 2007.

The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran.  Specifically, the information and evidence that
have been associated with the claims file includes service
treatment records, private medical records, and a VA
examination report.

As discussed above, the VCAA provisions have been considered
and complied with. The veteran was notified and aware of the
evidence needed to substantiate his claims for service
connection, the avenues through which he might obtain such
evidence, and the allocation of responsibilities between
himself and VA in obtaining such evidence.  The veteran has
been an active participant in the claims process, providing
evidence and letters in support of his claim. Thus, he has
been provided with a meaningful opportunity to participate in
the claims process and has done so. Any error in the sequence
of events or content of the notice is not shown to have
affected the essential fairness of the adjudication or to
cause injury to the veteran. See Sanders, 487 F.3d 881.
Therefore, any such error is harmless and does not prohibit
consideration of this matter on the merits. See Conway, 353
F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp.
v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Analysis

The Board has reviewed all the evidence in the veteran's
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 below will focus specifically on what
evidence is needed to substantiate the claims and what the
evidence in the claims file shows, or fails to show, with
respect to the claims.  See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000).

Service connection may be established for a 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
(2007).  Evidence of continuity of symptomatology from the
time of service until the present is required where the
chronicity of a condition manifested during service either
has not been established or might reasonably be questioned.
38 C.F.R. � 3.303(b) (2007).  Regulations also provide that
service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disability was
incurred in service. 38 C.F.R. � 3.303(d) (2007).

In order to prevail on the issue of service connection there
must be medical evidence of (1) a current disability; (2)
medical evidence, or in certain circumstances, lay evidence
of in-service occurrence or aggravation of a disease or
injury; (3) and medical evidence of a nexus between an in-
service injury or disease and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond
v. West, 12 Vet. App. 341, 346 (1999).

A.  Immersion Foot, Bilateral

The veteran indicated in his claim that he first had
immersion foot from in-service field maneuvers in Germany,
and that he currently has pain in his feet.  Service
treatment records corroborate that the veteran first
complained of pain in his feet in March 1981. The records
also indicate that the veteran had good circulation and his
skin was warm and dry, without swelling or blisters. He was
placed on indoor duty for 24 hours. Impressions were
immersion foot and exposure injury.  Other than the two
visits in March 1981 there is no evidence that the veteran
was ever seen for foot pain or immersion foot again. A
periodic examination given to the veteran in November 1986
revealed normal feet and the veteran specifically denied foot
trouble. On his VA Form 21-526, the veteran indicated that
these service treatment records were the only time that he
had been treated for immersion foot.

In addition to there being a lack of evidence showing
chronicity of symptomatology for immersion foot, the veteran
did not provide, or indicate that there is any,  medical
evidence that he currently suffers residuals from the
immersion foot he was treated for in March 1981. Private
treatment records note the veteran's right foot pain is
related to a recent fall at work. The records are devoid of
complaints regarding the left foot.  The records also make no
reference to prior immersion foot.

Thus, in the absence of evidence of current residuals of
immersion foot, the claim for service connection for that
disorder must be denied.  See Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992) (providing that in the absence of proof
of a present disability there can be no valid claim).

As a final matter, the Board notes that a VA examination was
not conducted with respect to this claim.  However, as the
medical evidence of record fails to reflect a current
disability with respect to immersion foot, and attributes the
current complaints of right foot pain with a work-related
injury, no examination is necessary.  38 C.F.R.
� 3.159(c)(4).

B.  Right Knee Condition

In his claim for service connection for a right knee disorder
the veteran listed an injury that occurred during field
maneuvers in Germany as the initial injury. He reports that
his injury was due to a fall, and that he was treated for
"holes in [his] knee and swelling."  Service treatment
records from June 1981 show that the veteran did have a fall
that resulted in a scraped right knee with subsequent
abscess. Treatment included sterile water irrigation of the
abscess, dressing changes, and medicine. The veteran's claim
states that he was treated for a few months to get the
swelling down. However, the service treatment records for the
right knee only reflect the treatment in June 1981. Periodic
examination in November 1986 revealed normal lower
extremities and the veteran denied having a trick or locked
knee.

Private treatment records reflect that the veteran fell at
work in May 2004 resulting in right foot and leg pain. A
history of a right knee injury in service was reported.
Physical therapy records indicate that the veteran only made
three visits before he reported at his final visit that he
felt better, at which time the veteran stopped reporting to
physical therapy.

The veteran was afforded a VA examination in May 2005.  The
VA examiner reviewed the claims file in conjunction with the
examination. When giving his history to the VA examiner, the
veteran denied a history of instability, laxity of the joint,
or significant flares of the right knee. The veteran's
physical examination demonstrated that his right knee had the
same range of motion as his left knee. The VA examiner gave a
diagnostic impression that it was less than 50 percent likely
that the veteran's right knee condition is related to service
as the condition in service was an abscess that was drained
which completely healed.

While the veteran maintains that he currently suffers from a
right knee disorder that is related to in-service trauma, the
VA examiner found that it was less likely that such a
relationship existed. There is no opinion to the contrary,
other than the veterans.  However, where the determinative
issue involves medical causation or a medical diagnosis, lay
assertions of medical status do not constitute competent
medical evidence.  Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992).

Therefore, there is no basis on which to grant service
connection for a right knee disability.  In reaching this
conclusion, the Board has considered the benefit of the doubt
doctrine; however, as the preponderance of the evidence is
against the claim, that doctrine is not applicable in the
instant appeal.

ORDER

Service connection for bilateral immersion foot is denied.

Service connection for a right knee condition is denied.

____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: THERESA M CATINO

disposition: remanded

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. 2008).

text:
Citation Nr: 0832000
Decision Date: 09/18/08    Archive Date: 09/30/08

DOCKET NO.  07-29 251	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for a low back disability.

ATTORNEY FOR THE BOARD

L. Jeng, Associate Counsel

INTRODUCTION

The veteran had active duty from June 1982 to January 1983
with over one year of prior active service.  He also served
in the Air National Guard of Florida from March 1981 to
December 1995.

This matter comes before the Board of Veterans' Appeals
(Board) from a March 2007 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO).

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

On his VA Form 9, the veteran requested a Travel Board
hearing before a Veterans Law Judge at the RO.  In a June 16,
2008 letter, the RO notified the veteran that a hearing was
scheduled for him on July 23, 2008.  Prior to the hearing,
the veteran submitted a correspondence received on July 14,
2008 requesting a postponement of his hearing in order to
find legal representation.  Then on July 22, 2008, the
veteran called the RO to request an extension for his
hearing.

While the veteran's request for a postponement of the hearing
was not received prior to two weeks before the scheduled
hearing, the Board has determined that good cause-time to
find legal representation-existed for the veteran's request
for a postponement.  Accordingly, the veteran should be
scheduled for a Travel Board hearing at the RO.  See 38
C.F.R. � 20.702(c) (2007).

Accordingly, the case is REMANDED for the following action:

Schedule the veteran for a hearing before
a Veterans Law Judge at the RO.  All
correspondence and any hearing transcripts
regarding this hearing should be
associated with the claims folder.

The veteran has the right to submit additional evidence and
argument on the matter 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 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. 2008).

_________________________________________________
THERESA M. CATINO
Acting 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).


judge_norm: P M DILORENZO

disposition: dismissed

text: 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. 2008).

text:
Citation Nr: 0833000
Decision Date: 09/25/08    Archive Date: 09/30/08

DOCKET NO.  04-23 097	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for the cause of the
veteran's death.

2.  Entitlement to accrued benefits.

REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

C. Lawson, Counsel

INTRODUCTION

The veteran served on active duty from April 1956 to May
1959.  He died in November 2001.  The appellant is his widow.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2003 rating determination of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida.  The case was previously before
the Board in June 2006, when it was remanded.

The issue of accrued benefits 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 appellant has been granted Dependency and Indemnity
(DIC) compensation under 38 U.S.C.A. � 1318, effective from
the day following the veteran's death.

2.  There is no longer a question or controversy regarding
the appellant's entitlement to DIC benefits under the
provisions of 38 U.S.C.A. � 1310; the claim is therefore
moot.

CONCLUSION OF LAW

The claim for service connection for the cause of the
veteran's death is dismissed.  38 U.S.C.A. � 1310 (West
2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Dependency and indemnity compensation benefits are payable
when a veteran dies of a service-connected disability.  38
U.S.C.A. � 1310 (West 2002).  However, in February 2008 the
RO granted entitlement to DIC under 38 U.S.C.A. � 1318, which
is one of the alternate bases for establishing entitlement to
dependency and indemnity compensation benefits as if under 38
U.S.C.A. � 1310.  See Timberlake v. Gober, 14 Vet. App. 122,
134 (2000).  A grant of benefits under � 1318 therefore
provides the identical benefit sought under � 1310.
Accordingly, the issue of entitlement to dependency and
indemnity compensation benefits under 38 U.S.C.A. � 1310 is
moot, and this aspect of the appellant's claim is dismissed.

In the June 2006 remand, the Board instructed the RO to
adjudicate a claim for entitlement to compensation under 38
U.S.C.A. � 1151 for the cause of the veteran's death, and if
the determination was adverse, the issue was to be returned
to the Board only if the appellant perfected an appeal.
However, instead of issuing a rating decision on the issue of
entitlement to compensation under 38 U.S.C.A. � 1151 for the
cause of the veteran's death and giving the appellant an
opportunity to appeal, the RO included the issue in a
February 2008 supplemental statement of the case.  Any error
in this regard is nonprejudicial because, as discussed above,
the appellant has been awarded entitlement to DIC under 38
U.S.C.A. � 1318, which is one of the alternate bases for
establishing entitlement to dependency and indemnity
compensation benefits.

ORDER

The claim for service connection for the cause of the
veteran's death is dismissed.

REMAND

The appellant filed a notice of disagreement in March 2003
with the RO's March 2003 denial of accrued benefits.  The
Board remanded the case in June 2006 for the RO/AMC to issue
a statement of the case on the matter, pursuant to Manlincon
v. West, 12 Vet. App. 238 (1999).  The RO/AMC instead
continued to deny accrued benefits in a February 2008 rating
decision, but failed to issue the appellant a statement of
the case.  See Letter from the RO/AMC to the appellant, dated
February 15, 2008.  Accordingly, remand is required.  See
Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

Any notice and development necessary
for the accrued benefits claim should
be conducted.  Thereafter, readjudicate
the appellant's claim for accrued
benefits.  If the determination remains
adverse to her, furnish her and her
representative a statement of the case
on this issue.  Notify her of the time
limit within which to file a
substantive appeal in order to perfect
an appeal of this issue and to secure
appellate review by the Board.
Thereafter, if an appeal is perfected,
this issue should be returned to the
Board.

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. 2008).

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

 Department of Veterans Affairs


text:
Citation Nr: 0901000
Decision Date: 01/09/09    Archive Date: 01/14/09

DOCKET NO.  07-28 277	)	DATE
	)
	)

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

THE ISSUES

Whether new and material evidence has been submitted to
reopen a claim for service connection for post-traumatic
stress disorder.

REPRESENTATION

Appellant represented by:	New York State Division of
Veterans' Affairs

ATTORNEY FOR THE BOARD

M. H. Stubbs, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1963 to June
1967.

This claim comes before the Board of Veterans' Appeals on
appeal from a September 2006 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York.

The veteran was afforded an RO hearing in March 2007.  A
transcript from that hearing is included in the claims
folder.

It appears that the RO adjudicated the claim for service
connection for post-traumatic stress disorder on the merits.
Despite the determination reached by the RO, the Board must
find new and material evidence in order to establish its
jurisdiction to review the merits of a previously denied
claim.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996);
Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).

The issue of entitlement to service connection for post-
traumatic stress disorder on the merits 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.  VA will notify you if further action is required on your
part.

FINDINGS OF FACT

1.  The January 2004 RO rating decision that denied a claim
of entitlement to service connection for post-traumatic
stress disorder was not appealed and is final.

2.  The evidence received since that January 2004 decision
includes evidence that is neither cumulative nor redundant,
relates to an unestablished fact necessary to substantiate
the claim for service connection for post-traumatic stress
disorder and raises a reasonable possibility of
substantiating the claim.

CONCLUSION OF LAW

New and material evidence has been received to reopen the
claim of entitlement to service connection for post-traumatic
stress disorder.  38 U.S.C.A. �� 5108, 7105 (West 2002); 38
C.F.R. � 3.156 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000

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. 2008)) redefined VA's duty to assist a
claimant in the development of a claim. VA regulations for
the implementation of the VCAA were codified as amended at 38
C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a) (2008).

In light of the favorable determination with respect to
whether new and material evidence has been submitted and the
need to remand for additional information with regard to the
merits of the case, no further discussion of VCAA compliance
is needed.

II. Analysis

A decision of the RO becomes final and is not subject to
revision on the same factual basis unless a notice of
disagreement is filed within one year of the notice of the
decision. 38 U.S.C.A. � 7105 (West 2002); 38 C.F.R.
�� 20.302, 20.1103 (2008).  If a claim of entitlement to
service connection has been previously denied and that
decision became final, the claim can be reopened and
reconsidered only if new and material evidence is presented
with respect to that claim. 38 U.S.C.A. � 5108 (West 2002);
see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

VA must review all the evidence submitted since the last
final rating decision in order to determine whether the claim
may be reopened. See Hickson v. West, 12 Vet. App. 247, 251
(1999).  For purposes of determining whether new and material
evidence has been received to reopen a finally adjudicated
claim, the recently submitted evidence will be presumed
credible. See Kutscherousky v. West, 12 Vet. App. 369, 371
(1999) (per curium) (holding that the "presumption of
credibility" doctrine continues to be precedent).

New evidence means existing evidence not previously submitted
to agency decisionmakers. 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
claim sought to be reopened, and must raise a reasonable
possibility of substantiating the claim. 38 C.F.R. � 3.156(a)
(2008).

Furthermore, the Court of Appeals for the Federal Circuit has
indicated that evidence may be considered new and material if
it contributes "to a more complete picture of the
circumstances surrounding the origin of a veteran's injury or
disability, even where it will not eventually convince the
Board to alter its ratings decision." Hodge v. West, 115
F.3d 1356, 1363 (Fed. Cir. 1998).

Service connection for post-traumatic stress disorder (PTSD)
was previously denied in January 2004.  Service connection
was denied because the evidence did not show a confirmed
diagnosis of PTSD.

Evidence associated with the claims file prior to the January
2004 decision included:  service treatment records, records
from a hospital stay from December 1967 to February 1968, the
ship history of USS Cochrane, VA treatment records from
August 2002 to October 2003, and a VA examination report from
December 2003.

Evidence associated with the claims folder after the January
2004 decision includes: service personnel records, VA
treatment records from November 2004 to August 2008, private
treatment records from April 2002 to March 2003, statements
from the veteran regarding his in-service stressors, and
hearing transcripts from a March 2007 RO hearing.

The veteran reports as a stressor the death of his daughter
from crib death while he was on active duty and being on a C-
130 cargo plane that was transporting the bodies of American
soldiers.  The veteran's service personnel records reflect an
instance of emergency leave in February 1967.

In addition, the VA treatment records associated with the
claims folder subsequent to the January 2004 rating decision
show diagnoses of and treatment for PTSD.  Thus, new and
material evidence has been submitted, and the claim for
service connection for post-traumatic stress disorder is
reopened.

ORDER

New and material evidence having been received, the claim for
service connection for post-traumatic stress disorder is
reopened.

REMAND

After a review, the Board observes that additional
development is necessary in this case prior to adjudication
of the claim for service connection for PTSD on the merits.

Further development is needed in regards to the veteran's
claimed in-service stressors.  The veteran has claimed that
the death of his daughter while he was in service as a
potential cause of his PTSD.  The veteran should supply the
VA with a death certificate for his daughter or other proof
of the date of his daughter's death.

The veteran has also claimed that he was transported to Rhode
Island on a C-130 cargo plane that was also transporting the
bodies of American soldiers.  His personnel records indicate
that in February 1967 he was granted emergency leave.  The
veteran should supply the VA with the date(s) of the flight,
the base where he departed from and the base where he arrived
in Rhode Island, and any other relevant information that
would help identify the flight for verification purposes.  If
sufficient information is provided by the veteran, an attempt
to verify the flight and its transportation of bodies should
be made through official sources.

Ongoing medical records should also be obtained.  38 U.S.C.A.
� 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet.
App. 611 (1992) (VA medical records are in constructive
possession of the agency, and must be obtained if the
material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Request that the veteran provide a
death certificate or other proof of the
date of death of his daughter.

2.  Request that the veteran supply the
date(s) when he was transported on the C-
130 cargo plane, the base where he
departed from and the base where he
arrived in Rhode Island.  The veteran
should also be advised to submit any other
relevant information he has to confirm the
date of the flight and his presence on it.

3.  If sufficient information is provided,
attempt to verify through official sources
the veteran's claimed stressor of being
transported on a C-130 that was also
transporting dead bodies.

4.  Obtain relevant mental health treatment
records from the New York Harbor Healthcare
System dating since August 2007.

5.  If, and only if, sufficient
corroborating evidence is provided to
verify the veteran's claimed stressors,
the veteran should be afforded a VA
psychiatric examination to determine
whether he suffers from PTSD as a result
of the verified stressor.  The examiner
should state whether the verified stressor
is of a nature sufficient to result in
PTSD, and if so, whether the veteran meets
the diagnostic criteria for PTSD due to
the verified stressor.  All necessary
tests should be performed.  The rationale
for all opinions expressed must be set
forth.  The claims file should be provided
to and reviewed by the examiner in
conjunction with the examination.

6.  Thereafter, please readjudicate the
claim. If the benefit sought on appeal
remains denied, the veteran and his
representative should be issued a
supplemental statement of the case and
given an opportunity to respond before the
case is returned to the Board.

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. 2008).

______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: M E LARKIN

benefit: healthcare

text:
Citation Nr: 0902000
Decision Date: 01/16/09    Archive Date: 01/22/09

DOCKET NO.  07-21 213	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Network Authorization and
Payment Center in Fort Harrison, Montana

THE ISSUE

Entitlement to payment or reimbursement of unauthorized
medical expenses incurred at the McKay-Dee Hospital from June
20, 2005, to June 22, 2005.

ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Associate Counsel

INTRODUCTION

The veteran served on active duty from July 1968 to July
1970.

This matter comes before the Board of Veterans' Appeals
(Board) from an October 2005 decision of the Department of
Veterans Affairs (VA) Network Authorization and Payment
Center in Fort Harrison, Montana that denied payment or
reimbursement of medical expenses incurred by the veteran at
McKay-Dee Hospital from June 20, 2005, to June 22, 2005.

FINDINGS OF FACT

The veteran was enrolled in the VA health care system on the
date on which he received private treatment, but he had not
been an active participant in the VA health care system
during the 24 months prior to receiving the private treatment
for which he seeks payment or reimbursement.

CONCLUSION OF LAW

The criteria for payment or reimbursement by VA of the cost
of unauthorized medical services provided by the McKay-Dee
Hospital from June 20, 2005, to June 22, 2005, have not been
met.  38 U.S.C.A. �� 1703, 1725, 1728 (West 2002 & 2008); 38
C.F.R. �� 17.120, 17.1002 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As this case concerns a legal determination as to whether the
veteran is entitled to reimbursement for medical expenses
under 38 U.S.C.A. � 1703, 1725, and 1728, the provisions of
38 U.S.C.A. �� 5103, 5103A are not applicable.  The
provisions of 38 U.S.C. Chapter 17 and the relevant
regulations contain their own notice requirements.
Regulations at 38 C.F.R. � 17.120-33 discuss the adjudication
of claims for reimbursement of unauthorized medical expenses.
According to 38 C.F.R. � 17.124, the veteran has the duty to
submit documentary evidence establishing the amount paid or
owed, an explanation of the circumstances necessitating the
non-VA medical treatment, and other evidence or statements
that are deemed necessary and requested for adjudication of
the claim.  When a claim for reimbursement of unauthorized
medical expenses is disallowed, VA is required to notify the
claimant of its reasons and bases for denial, his or her
appellate rights, and to furnish all other notifications or
statements required.  38 C.F.R. � 17.132.

The veteran was notified of the decision and his appellate
rights in October 2005 and provided with a the Statement of
the Case in April 2007 that informed him of the evidence that
VA had considered, the pertinent laws and regulations, and
the reasons and bases for VA's decision.  All pertinent
evidence regarding the reported non-VA medical treatment in
June 2005 has been obtained and associated with the claims
file.  Based upon the above analysis, the Board finds that VA
has fulfilled its duty to assist the appellant in the
development of the current claim.

Reimbursement of Unauthorized Medical Expenses

Congress has authorized the reimbursement for unauthorized
emergency medical treatment under two statutory provisions,
38 U.S.C.A. � 1728 and 38 U.S.C.A. � 1725.  The first statute
applies to veterans either service connected for at least one
disability at the time they sought treatment or who were
participants in a vocational rehabilitation program.  The
veteran does not contend, and it is not shown, that he is
service-connected for any disability or is a participant in a
vocational rehabilitation program.  As such, payment or
reimbursement under 38 U.S.C.A. � 1728 is not warranted.

Payment or reimbursement for emergency services for non
service-connected conditions in non-VA facilities may be
authorized under 38 U.S.C.A. � 1725 and 38 C.F.R. �� 17.1000-
1008.  Section 1725 was enacted as part of the Veterans
Millennium Health Care and Benefits Act, Public Law 106-177.
The provisions of the Act became effective as of May 29,
2000.  To be eligible for reimbursement under this authority
the veteran has to satisfy all of the following conditions:
(a) The emergency services were provided in a hospital
emergency department or a similar facility held out as
providing emergency care to the public;

(b) The claim for payment or reimbursement for the initial
evaluation and treatment is for a condition of such a nature
that a prudent layperson would have reasonably expected that
delay in seeking immediate medical attention would have been
hazardous to life or health (this standard would be met if
there were an emergency medical condition manifesting itself
by acute symptoms of sufficient severity (including severe
pain) that a prudent layperson who possesses an average
knowledge of health and medicine could reasonably expect the
absence of immediate medical attention to result in placing
the health of the individual in serious jeopardy, serious
impairment to bodily functions, or serious dysfunction of any
bodily organ or part);

(c) A VA or other Federal facility/provider was not feasibly
available and an attempt to use them before hand would not
have been considered reasonable by a prudent layperson (as an
example, these conditions would be met by evidence
establishing that a veteran was brought to a hospital in an
ambulance and the ambulance personnel determined that the
nearest available appropriate level of care was at a non-VA
medical center);

(d) The claim for payment or reimbursement for any medical
care beyond the initial emergency evaluation and treatment is
for a continued medical emergency of such a nature that the
veteran could not have been safely transferred to a VA or
other Federal facility;

(e) At the time the emergency treatment was furnished, the
veteran was enrolled in the VA health care system and had
received medical services under authority of 38 U.S.C.
Chapter 17 within the 24-month period preceding the
furnishing of such emergency treatment;

(f) The veteran is financially liable to the provider of
emergency treatment for that treatment;

(g) The veteran has no coverage under a health-plan contract
for payment or reimbursement, in whole or in part, for the
emergency treatment (this condition cannot be met if the
veteran has coverage under a health-plan contract but payment
is barred because of a failure by the veteran or provider to
comply with the provisions of that health-plan contract,
e.g., failure to submit a bill or medical records within
specified time limits, or failure to exhaust appeals of the
denial of payment);

(h) If the condition for which the emergency treatment was
furnished was caused by an accident or work-related injury,
the claimant has exhausted without success all claims and
remedies reasonably available to the veteran or provider
against a third party for payment of such treatment; and the
veteran has no contractual or legal recourse against a third
party that could reasonably be pursued for the purpose of
extinguishing, in whole or in part, the veteran's liability
to the provider; and

(i) The veteran is not eligible for reimbursement under 38
U.S.C.A. � 1728 for the emergency treatment provided (38
U.S.C.A. � 1728 authorizes VA payment or reimbursement for
emergency treatment to a limited group of veterans, primarily
those who receive emergency treatment for a service-connected
disability).  See 38 C.F.R. � 17.1002.

As noted, the veteran is not eligible for reimbursement under
38 U.S.C.A. � 1728 for the emergency treatment provided (38
U.S.C.A. � 1728 authorizes VA payment or reimbursement for
emergency treatment to a limited group of veterans, primarily
those who receive emergency treatment for a service-connected
disability).  See 38 C.F.R. � 17.1002.

These criteria are conjunctive, not disjunctive; thus all
criteria must be met.  See Melson v. Derwinski, 1 Vet. App.
334 (June 1991) (use of the conjunctive "and" in a
statutory provision meant that all of the conditions listed
in the provision must be met).

The provisions of 38 U.S.C.A. �� 1725 and 1728 were changed
via legislation which became effective October 10, 2008.  See
Veterans' Mental Health and Other Care Improvement Act of
2008, Pub. L. No. 110-387, � __, 122 Stat. 4110, __  (2008).
Specifically, the change of interest is that the word
"shall" in the first sentence, replaced the word "may."
This made the payment or reimbursement by VA of treatment
non-discretionary, if the veteran satisfied the requirements
for such payment.  That is, under the version of � 1725 in
effect prior to October 10, 2008, payment of such medical
expenses was not mandatory even if all conditions for the
payment were met.  Under both versions, the conditions set
out in the remainder of the statute must be met in order for
VA to make payment or reimbursement.  While the provisions
became effective when the law was signed on October 10, 2008,
there was no specific effective date or applicability date
indicated for the provision.  There is a general presumption
against the retroactive effect of new statutes.  Landgraf v.
USI Film Products, 511 U.S. 244 (1994).

Under both the former and revised versions of � 1725, the
definition of the term "active Department health-care
participant" was and is defined as a veteran enrolled in the
health care system established under section 1705(a) of this
title who received care under this chapter within the 24-
month period preceding the furnishing of emergency treatment.
38 U.S.C.A. � 1725(b)(2).  Thus, although the veteran has not
been apprised of the revised version of � 1725, the Board
finds that there is no prejudice to the veteran by this Board
decision as the statutory language relevant to the appeal was
not revised.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Further, the Board need not here determine whether � 1725 as
revised effective October 10, 2008, is to be given
retroactive effect.  Whether the version effective prior to
October 10, 2008, or the version effective since October 10,
2008, is applied, the result is the same; as the appeal must
be denied.

The veteran is seeking reimbursement of payment of medical
expenses he incurred at the McKay-Dee Hospital from June 20,
2005, to June 22, 2005, when he sought treatment for
abdominal pain and was admitted for surgical treatment for a
perforated sigmoid colon.
Although the veteran was enrolled in the VA healthcare system
at the time he was admitted to the McKay-Dee Hospital for
emergency treatment, he had not received VA care within the
24-month period preceding the furnishing of this emergency
treatment.  In an August 2005 letter the veteran related that
he had enrolled in the "VA hospital" in January 2005.  He
acknowledged not having received any VA care from his initial
enrollment to the time he was admitted to the McKay-Dee
Hospital on June 20, 2005.  The Network Authorization and
Payment Center in Fort Harrison, Montana conducted a search
of VA records to ascertain if the veteran had received any VA
care in the 24 months prior to his admission to the McKay-Dee
Hospital and found that he had not.  Under these
circumstances, because the veteran did not receive any VA
care in the 24 months prior to this admission, he does not
qualify as an active Department health-care participant and
the claim must be denied.

The Board acknowledges the veteran's and his private
physician's statements that following his admission to McKay-
Dee Hospital he was denied admission to a VA facility due to
lack of beds.  However, as outlined above, the criteria
necessary to establish this claim are conjunctive; thus the
statutory and regulatory provisions pertaining to the
feasibility of obtaining treatment at a VA or other Federal
facility have no bearing on the current appeal.

ORDER

Entitlement to payment or reimbursement of unauthorized
medical expenses incurred at the McKay-Dee Hospital from June
20, 2005, to June 22, 2005, is denied.

____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: RENÉE M PELLETIER

text:
Citation Nr: 0903000
Decision Date: 01/28/09    Archive Date: 02/09/09

DOCKET NO.  08-04 990	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma

THE ISSUE

Entitlement to a compensable rating for bilateral hearing
loss.

REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law

ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel

INTRODUCTION

The veteran had active duty service from March 1966 to
February 1969.

This matter comes before the Board of Veterans' Appeals
(Board) from a November 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma, which denied entitlement to a compensable
rating for bilateral hearing loss.

FINDINGS OF FACT

1.  All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.

2.  Bilateral hearing loss is manifested by no worse than
Level V hearing loss for VA purposes in the left ear and by
no worse than Level I hearing loss for VA purposes in the
right ear.

CONCLUSION OF LAW

1.  The criteria for a compensable for bilateral hearing loss
have not been met.  38 U.S.C.A. � 5103, 5103A, 5107 (West
2002 & Supp. 2006); 38 C.F.R. � 3.385, 4.85, 4.86, Diagnostic
Code 6100 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a), and as interpreted by the United States Court of
Appeals for Veterans Claims (the Court) have been fulfilled.
In this case, the veteran's claim for a compensable rating
for bilateral hearing loss was received in August 2007.  He
was notified of the provisions of the VCAA by the RO in
correspondence dated in September 2007.  This letter notified
the veteran of VA's responsibilities in obtaining information
to assist the veteran in completing his claim, identified the
veteran's duties in obtaining information and evidence to
substantiate his claim, and provided other pertinent
information regarding the VCAA.  Thereafter, the claim was
reviewed and a statement of the case was issued in February
2008, and a supplemental statement of the case was issued in
July 2008.  See 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002),
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also
Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed
on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v.
Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Mayfield v.
Nicholson (Mayfield III), 07-7130 (Fed. Cir. September 17,
2007).  The Board notes that 38 C.F.R. � 3.159 was revised,
effective May 30, 2008, removing the sentence in subsection
(b)(1) stating that VA will request the claimant provide any
evidence in the claimant's possession that pertains to the
claim.  Subsection (b)(3) was also added and notes that no
duty to provide � 5103(a) notice arises "[u]pon receipt of a
Notice of Disagreement" or when "as a matter of law,
entitlement to the benefit claimed cannot be established."
See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008).

During the pendency of this appeal, the United States Court
of Appeals for Veterans Claims (hereinafter "the Court") in
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), found
that the VCAA notice requirements applied to all elements of
a claim.  Notice as to this matter was provided in September
2007.

For the veteran's increased-compensation claim, section �
5103(a) requires, at a minimum, that the Secretary notify the
claimant that, to substantiate a claim, the claimant must
provide, or ask the Secretary 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.  See Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008).  As with proper notice for an
initial disability rating and consistent with the statutory
and regulatory history, the notice must also provide examples
of the types of medical and lay evidence that the claimant
may submit (or ask the Secretary 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.

In this case, the September 2007 and June 2008 letters
informed the veteran of the necessity of providing evidence
demonstrating a worsening or increase in severity of the
disability.  The June 2008 letter also discusses examples and
types of medical and lay evidence that claimant may submit to
establish entitlement to an increased rating.  However, the
Board notes that these letters did not provide the exact
rating criteria necessary for entitlement to a higher
disability.  In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir.
2007), the Federal Circuit Court 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, the burden shifts to VA to demonstrate
that the error was not prejudicial to the appellant.  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.  See also Dunlap v. Nicholson, 21 Vet. App.
112, 118 (2007).

The Court has stated that "nothing in law or common sense
supports a conclusion that the Court should put on blinders
and ignore [the 'extensive administrative appellate process']
or a conclusion that a notice error prior to the initial
decision by the Secretary could not be rendered non-
prejudicial when the full panoply of administrative appellate
procedures established by Congress are provided to the
claimant.  It is well settled that a remand is not warranted
when no benefit would flow to the claimant."  See Vazquez-
Flores.  In this case, the veteran demonstrated that there
was actual knowledge of what was needed to establish the
claim.  The veteran was also informed of the exact test
results needed for an increased evaluation for bilateral
hearing loss in the statement of the case issued in
connection with the current appeal in February 2008.  In his
February 2008 VA Form 9, the veteran requested another audio
exam and specifically noted how close he was to the next
higher rating in terms of his auditory threshold and VA's
rating schedule. Consequently, actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrates an awareness of
what was necessary to substantiate his claim.  See Dalton v.
Nicholson, 21 Vet. App. 23, 30-31 (2007); see also Short Bear
v. Nicholson, 19 Vet. App. 341, 344 (2005).

In sum, the veteran was provided the information necessary
such that any defective pre-decisional notice error was
rendered non-prejudicial in terms of the essential fairness
of the adjudication.  Thus, the Board finds that although
there was VCAA deficiency, the evidence of record is
sufficient to rebut this presumption of prejudice as the
record shows that this error was not prejudicial to the
veteran, and the essential fairness of the adjudication
process in this case was preserved.  As there is no
indication that any failure on the part of VA to provide
additional notice of assistance reasonably affects the
outcome of this case, the Board finds that such failure is
harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006).

The veteran has been made aware of the information and
evidence necessary to substantiate his claim and has been
provided opportunities to submit such evidence. A review of
the claims file also shows that VA has conducted reasonable
efforts to assist him in obtaining evidence necessary to
substantiate his claim during the course of this appeal.  His
service treatment records and all relevant VA treatment
records pertaining to his claim have been obtained and
associated with his claims file.  He has also been provided
with multiple VA medical examinations to assess the current
state of his service-connected bilateral hearing loss.

Furthermore, the veteran has not identified any additional,
relevant evidence that has not otherwise been requested or
obtained.  He has been notified of the evidence and
information necessary to substantiate his claim, and he has
been notified of VA's efforts to assist him.  See Quartuccio
v. Principi, 16 Vet. App. 183 (2002).  As a result of the
development that has been undertaken, there is no reasonable
possibility that further assistance will aid in
substantiating his claim.

Increased Rating for Bilateral Hearing Loss

The severity of a service-connected disability is
ascertained, for VA rating purposes, by the application of
rating criteria set forth in VA's Schedule for Rating
Disabilities, 38 C.F.R. Part 4 (2008) (Schedule).  To
evaluate the severity of a particular disability, it is
essential to consider its history.  See Schafrath v.
Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. �� 4.1 and 4.2
(2008).

Where there is a reasonable doubt as to the degree of
disability, such doubt will be resolved in favor of the
claimant.  See 38 C.F.R. �� 3.102, 4.3 (2008).  In addition,
where there is a question as to which of two disability
evaluations should be applied, 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.  See 38 C.F.R. � 4.7 (2008).

The Board further acknowledges that a claimant may experience
multiple distinct degrees of disability that might result in
different levels of compensation from the time the increased
rating claim was filed until a final decision is made.  See
Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in
the following matter is therefore undertaken with
consideration of the possibility that different ratings may
be warranted for different time periods.

The assignment of disability ratings for service-connected
hearing impairment is derived by a mechanical application of
the rating schedule to the numeric designations assigned
after audiometric evaluations are rendered.  See Lendenmann
v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations for
defective hearing range from noncompensable to 100 percent
based on organic impairment of hearing acuity as measured by
the results of controlled speech discrimination tests
together with the average hearing threshold level as measured
by puretone audiometry tests in the frequencies 1,000, 2,000,
3,000, and 4,000 Hertz.  The rating schedule establishes
eleven auditory acuity levels designated from level I for
essentially normal auditory acuity to level XI for profound
deafness.  See 38 C.F.R. � 4.85 (2008).

Table VI, "Numeric Designation of Hearing Impairment Based
on Puretone Threshold Average and Speech Discrimination," is
used to determine a Roman numeral designation (I through XI)
for hearing impairment based on a combination of the percent
of speech discrimination (horizontal rows) and the puretone
threshold average (vertical columns).

Table VI
Numeric designation of hearing impairment based on puretone
threshold average and speech discrimination.

% of
discrim-
ination
Puretone Threshold Average

0-41
42-
49
50-
57
58-
65
66-
73
74-
81
82-
89
90-
97
98+
92-100
I
I
I
II
II
II
III
III
IV
84-90
II
II
II
III
III
III
IV
IV
IV
76-82
III
III
IV
IV
IV
V
V
V
V
68-74
IV
IV
V
V
VI
VI
VII
VII
VII
60-66
V
V
VI
VI
VII
VII
VIII
VIII
VIII
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X
36-42
VIII
VIII
VIII
IX
IX
IX
X
X
X
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI

Table VIA*
Numeric designation of hearing impairment based
only on puretone threshold average

Puretone Threshold Average
0-41
42-
48
49-
55
56-
62
63-
69
70-
76
77-
83
84-
90
91-
97
98-
104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI
*This table is for use only as specified in ��4.85 and 4.86.

Table VII, "Percentage Evaluations for Hearing Impairment,"
is used to determine the percentage evaluation by combining
the Roman numeral designations for hearing impairment of each
ear.  The horizontal rows represent the ear having the better
hearing and the vertical columns the ear having the poorer
hearing.  The percentage evaluation is located at the point
where the row and column intersect.

Table VII
Percentage evaluation for hearing impairment  (Diagnostic
Code 6100)
Poorer Ear
Better
Ear

XI
100

X
90
80

IX
80
70
60

VIII
70
60
50
50

VII
60
60
50
40
40

VI
50
50
40
40
30
30

V
40
40
40
30
30
20
20

IV
30
30
30
20
20
20
10
10

III
20
20
20
20
20
10
10
10
0

II
10
10
10
10
10
10
10
0
0
0

I
10
10
0
0
0
0
0
0
0
0
0

XI
X
IX
VIII
VII
VI
V
IV
III
II
I

If impaired hearing is service-connected in only one ear, in
order to determine the percentage evaluation from Table VII,
the non-service-connected ear will be assigned a Roman
Numeral designation for hearing impairment of level I.  See
38 C.F.R. � 4.85(f) (2008).

When the puretone thresholds at the four specified
frequencies (1000, 2000, 3000, and 4000 hertz) are 55
decibels or more the rating specialist will determine the
Roman numeral designation for hearing impairment from either
Table VI or Table VIa, whichever results in the higher
numeral.  See 38 C.F.R. � 4.86(a) (2008).

When the pure tone thresholds are 30 decibels or less at 1000
Hz and 70 decibels or more at 2000 Hz, the rating specialist
will likewise determine the Roman numeral designation for
hearing impairment from either Table VI or Table VIa,
whichever results in the higher numeral.  That numeral will
then be elevated to the next highest Roman numeral.  See 38
C.F.R. � 4.86(b) (2008).

In a June 2007 audiology progress note, the audiologist
stated she conducted a puretone audiometry and speech
audiometry exam; however, she did not give the threshold
levels in her report.  She noted that right hearing
sensitivity was normal to mild through 3000Hz sloping to a
moderately severe sensorineural hearing loss.  Word
recognition was 92 percent.  In the left ear, hearing
sensitivity was mild to moderate through 3000Hz sloping to a
severe sensorineural hearing loss.  Word recognition was 84
percent.  The audiologist did note there had been no change
in the veteran's hearing since May 2006.

In September 2007, the veteran underwent another VA audiology
examination.  Puretone thresholds, in decibels, were reported
as follows:

HERTZ

500
A
1000
B
2000
C
3000
D
4000
A+B+C+D
AVG.
RIGHT
45
45
35
60
65
51
LEFT
55
55
50
70
80
64

Speech audiometry revealed speech recognition ability of 80
percent in the left ear and of 92 percent in the right ear.

Applying the above results to the Table VI chart, a puretone
threshold average of 51 and a speech discrimination of 92
percent, in the right ear, will result in level I hearing for
that ear.  A puretone threshold average of 64 and a speech
discrimination of 80 percent, in the left ear, will result in
level IV hearing for that ear.  Applying these results to the
Table VII chart (with left ear being the "poorer" ear), a
level I for the right ear, combined with a level IV for the
left ear, will result in a noncompensable (zero percent)
compensation evaluation.

The claims file also contains an April 2008 VA audiology
evaluation report that included audiometric findings.
Puretone thresholds, in decibels, were reported as follows:

HERTZ

500
A
1000
B
2000
C
3000
D
4000
A+B+C+D
AVG.
RIGHT
40
40
40
45
50
44
LEFT
55
55
60
65
70
63

Speech audiometry revealed speech recognition ability of 92
percent in the left ear and of 100 percent in the right ear.

Applying the above results to the Table VI chart (as well as
Table VIa applicable to left ear findings due exceptional
patterns in hearing impairment), a puretone threshold average
of 63 and a speech discrimination of 92 percent, in the left
ear, will result in level V hearing for that ear.  A puretone
threshold average of 44 and a speech discrimination of 100
percent, in the right ear, will result in level I hearing for
that ear.  Applying these results to the Table VII chart
(with left ear being the "poorer" ear), a level I for the
right ear, combined with a level V for the left ear, will
result in a noncompensable (zero percent) compensation
evaluation.

Thus, the Board finds that the continuation of previously
assigned noncompensable evaluation is proper based upon the
September 2007 and April 2008 VA audiometric examination
reports, as mechanically applied to the relevant tables.
Evidence of record clearly does not reflect impaired hearing
acuity levels which would warrant the assignment of a
compensable evaluation for bilateral hearing loss.

The Board acknowledges the difficulties that the veteran has
with his bilateral auditory acuity.  However, the ratings for
hearing loss are based on a mechanical application of the
tables provided by law; the Board has no discretion in this
matter and must predicate its determination on the basis of
the results of the audiology studies of record.  See
Lendenmann v. Principi, 3 Vet. App. 345 (1992).

For all the foregoing reasons, the veteran's claim for
entitlement to a compensable evaluation for bilateral hearing
loss must be denied.  The Board has also considered staged
ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007),
but concludes that they are not warranted.  Since the
preponderance of the evidence is against this claim, the
benefit of the doubt doctrine is not for application.  See
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board also finds there is no evidence of any unusual or
exceptional circumstances, such as marked interference with
employment or frequent periods of hospitalization related to
his service-connected bilateral hearing loss disability that
would take the veteran's case outside the norm so as to
warrant the assignment of an extraschedular rating.
Consequently, referral by the RO to the Chief Benefits
Director of VA's Compensation and Pension Service, under 38
C.F.R. � 3.321, is not warranted.  See Bagwell v. Brown, 9
Vet. App. 337 (1996).

ORDER

Entitlement to a compensable evaluation for bilateral hearing
loss is denied.

____________________________________________
REN�E M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JOY A MCDONALD

text:
Citation Nr: 0904000
Decision Date: 02/04/09    Archive Date: 02/12/09

DOCKET NO.  06-15 088	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska

THE ISSUES

1.  Entitlement to service connection for Meniere's disease.

2.  Entitlement to service connection for a headache
disorder, to include as secondary to service-connected
tinnitus and bilateral hearing loss.

REPRESENTATION

Appellant represented by:	Richard J. Mahlin, Attorney at
Law

ATTORNEY FOR THE BOARD

David S. Ames, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1968 to August
1971.

This matter comes properly before the Board of Veterans'
Appeals (Board) on appeal from a rating decision by the
Department of Veterans Affairs (VA) Regional Office in
Lincoln, Nebraska (RO).  This case was remanded by the Board
in July 2008 for additional development.

FINDINGS OF FACT

1.  The medical evidence of record does not show that the
veteran has a current diagnosis of Meniere's disease.

2.  The medical evidence of record does not show that the
veteran's currently diagnosed headache disorder is related to
military service or to a service-connected disability.

CONCLUSIONS OF LAW

1.  Meniere's disease was not incurred in, or aggravated by,
active military service.  38 U.S.C.A. �� 1110, 5103A, 5107
(West 2002); 38 C.F.R. � 3.303 (2008).

2.  A headache disorder was not incurred in, or aggravated
by, active military service, nor is it proximately due to, or
aggravated by, a service-connected disability.  38 U.S.C.A.
�� 1110, 5103A, 5107 (West 2002); 38 C.F.R. �� 3.303, 3.310
(2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the veteran's claims, VA has met all
statutory and regulatory notice and duty to assist
provisions.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
�� 3.102, 3.156(a), 3.159, 3.326 (2008).  Prior to initial
adjudication, a letter dated in April 2005 satisfied the duty
to notify provisions.  An additional letter was also provided
to the veteran in March 2006, after which the claims were
readjudicated.  See 38 C.F.R. � 3.159(b)(1); Overton v.
Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006).  The veteran's service
treatment records, VA medical treatment records, and
indicated private medical records have been obtained.  VA
examinations were provided to the veteran in connection with
his claims.  There is no indication in the record that
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, 20 Vet. App. 537
(2006); see also Dingess/Hartman, 19 Vet. App. 473.  Further,
the purpose behind the notice requirement has been satisfied
because the veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his claims, to include the opportunity to present pertinent
evidence.

Meniere's Disease

Generally, service connection may be granted for a disability
resulting from disease or injury incurred in or aggravated by
active military service.  38 U.S.C.A. � 1110; 38 C.F.R. �
3.303(a).  In addition, service connection may 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).

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

The veteran's service treatment records show multiple
complaints and diagnoses of hearing loss and tinnitus.

After separation from military service, a June 1973 VA
medical examination report gave a diagnosis of bilateral
sensorineural hearing loss.  The medical evidence of record
shows that bilateral hearing loss has been consistently
diagnosed since June 1973.

In a September 1978 VA audiological examination report, the
veteran complained of tinnitus.  The medical evidence of
record shows that tinnitus has been consistently diagnosed
since September 1978.

A September 2008 VA ear diseases examination report stated
that the veteran's claims file had been reviewed.  The
examiner summarized the veteran's medical history and
conducted physical and audiological examinations.  The
diagnoses were bilateral sensorineural hearing loss and
tinnitus.  The examiner stated that

I do not believe that the veteran suffers
from Meniere's disease.  His symptoms are
not consistent with this.  He does have
hearing loss and tinnitus, and he has
occasional episodes where he has more
aural fullness with his tinnitus;
however, these are not associated with
any balance difficulties or any
fluctuating hearing.  His hearing loss
has been stable since 2006.  This also is
not consistent with a Meniere's disease.
Since he does have some balance
difficulties in the mornings, however, I
have asked that he obtain a
[videonystagmograph (VNG)] in order to
further evaluate his vestibular system.
I will make an amendment to this report
once those results are available, but at
this time, I do not believe he suffers
from Meniere's disease.

In an October 2008 addendum, the VA physician who wrote the
September 2008 VA ear diseases examination report stated that
the veteran's VNG had been reviewed.  The examiner stated
that "the VNG further supports the veteran NOT suffering
from Meniere's disease.  Therefore, I believe it is LESS
likely than not that the veteran has Meniere's disease."

The medical evidence of record does not show that the veteran
has a current diagnosis of Meniere's disease.  The veteran's
service treatment records are negative for any diagnosis of
Meniere's disease, and none of the post-service medical
records include a diagnosis of Meniere's disease.  The only
medical evidence of record which addresses whether the
veteran has a diagnosis of Meniere's disease are the
September 2008 VA ear diseases examination report and the
October 2008 addendum.  These reports stated that the
examiner did not believe that the veteran had Meniere's
disease.  The existence of a current disability is the
cornerstone of a claim for VA disability compensation.  See
Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the
VA's and the United States Court of Appeals for Veterans
Claims' interpretation of sections 1110 and 1131 of the
statute as requiring the existence of a present disability
for VA compensation purposes cannot be considered arbitrary
and therefore the decision based on that interpretation must
be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed.
Cir. 1998).

The veteran's statements alone are not sufficient to prove
that he has a current diagnosis of Meniere's disease.
Medical diagnosis and causation involve questions that are
beyond the range of common experience and common knowledge
and require the special knowledge and experience of a trained
physician.  As he is not a physician, the veteran is not
competent to make a determination that he has a current
diagnosis of Meniere's disease.  Espiritu v. Derwinski, 2
Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App.
91, 93 (1993).  Accordingly, there is no medical evidence of
record that the veteran has ever had a diagnosis of Meniere's
disease during the pendency of this appeal.  As such, service
connection for Meniere's disease is not warranted.

In reaching this decision, the Board considered the doctrine
of reasonable doubt.  However, as there is no medical
evidence that the veteran has ever had a diagnosis of
Meniere's disease during the pendency of this appeal, the
doctrine is not for application.  Gilbert v. Derwinski, 1
Vet. App. 49 (1990).

Headache Disorder

Service connection may be established on a secondary basis
for a disability which is shown to be proximately due to or
the result of a service connected disease or injury.  38
C.F.R. � 3.310(a).  Establishing service connection on a
secondary basis requires evidence sufficient to show (1) that
a current disability exists and (2) that the current
disability was either (a) caused by a service connected
disability or (b) aggravated by a service connected
disability.  Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995)
(en banc).

In a June 1971 service medical report, the veteran complained
of multiple symptoms, including a headache.  After physical
examination, the diagnosis was upper respiratory infection.
On the veteran's June 1971 separation report of medical
history, the veteran indicated that he did not have and had
never had frequent or severe headaches.

After separation from military service, in a March 2002 VA
outpatient medical report, the veteran denied any history of
headaches.

In a July 2002 VA outpatient medical report, the veteran
denied any history of headaches.

In a July 2005 private medical report, the veteran complained
of "terrible headaches" which had increased in severity
over the previous year.  The veteran reported having
headaches since separation from military service.  He
reported that he had tinnitus and that the headaches
"seemed" to correspond with them.  The veteran reported
that over the previous year he had been waking up at night
with very loud tinnitus and headaches.  He denied
neurological problems with the headaches except for tinnitus.
After physical examination, the assessment was "[c]hronic
headache in the middle of the night, but yet headache that
has changed."

A September 2008 VA neurological disorders examination report
stated that the veteran's claims file had been reviewed.  The
veteran complained of weekly migraines that were not
prostrating.  After neurological examination, the diagnosis
was tension headaches.  The examiner stated that

there are many cases where tinnitus is so
loud, that it can cause headaches.
However, the veteran also has other
contributory factors (to his headaches)
which include many years of truck driving
duties, which can easily contribute to
his hearing loss and tinnitus, and also a
history of hypertension.

Concerning his service-connected
disabilities, the only item I can find
that would related to his headaches would
be the tinnitus, as it appears to be very
loud.  Therefore, I feel it is at least
as likely as not that the tinnitus is a
contributing factor to his tension
headaches, because a[t] times, tinnitus
can be bothersome enough to play into
tension-type headaches.  In addition, he
does not have other contributing factors,
as noted above.

A September 2008 VA ear diseases examination report stated
that the veteran's claims file had been reviewed.  The
examiner summarized the veteran's medical history and
conducted physical and audiological examinations.  The
diagnoses were bilateral sensorineural hearing loss and
tinnitus.  The examiner stated that

I do not find any evidence that [the
veteran's bilateral hearing loss and
tinnitus] is the etiology of the
headache.  Again, he notes no increase in
headache symptoms when he has the spells
of aural fullness and the increasing
tinnitus.  He states his headaches are
typically present in the morning.  To
find that he headaches are related to his
tinnitus and hearing loss would be a
highly unusual finding, and it would
require mere speculation on my part to
say that the two are related.

In an October 2008 addendum, the VA physician who wrote the
September 2008 VA neurological disorders examination report
stated that the veteran had undergone ear, nose, and throat
(ENT)

specialty evaluation along with VNG
testing.  The ENT physician stated it
would [be] resorting to mere speculation
to state whether headaches were
specifically due to tinnitus.  He stated
that this would be a very unusual
finding.  The subsequent VNG testing was
performed and did not show any specific
findings, according to the ENT physician.

At the time [the veteran] was seen by
this examiner, I made comments as to the
relationship between headaches and his
loud tinnitus, as I was under the
assumption that if his tinnitus was so
loud, it could easily play into
headaches.  However, [t]he ENT specialty
physician has said that there is no
relationship between these.  Therefore, I
agree with the specialty examiner's
commentary that any relationship between
the two would be speculative.  He states
reasons and basis why.

The medical evidence of record does not show that the
veteran's currently diagnosed headache disorder is related to
military service or to a service-connected disability.  While
the veteran did complain of headaches in a service medical
report, it was just one of several complaints that were
diagnosed as an upper respiratory infection.  The veteran
also reported no history of frequent or severe headaches
during military service.  While the veteran has a current
diagnosis of a headache disorder, there is no medical
evidence of record that it was diagnosed prior to July 2005,
approximately 34 years after separation from military
service.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991)
(holding that VA did not err in denying service connection
when the veteran failed to provide evidence which
demonstrated continuity of symptomatology, and failed to
account for the lengthy time period for which there is no
clinical documentation of his low back condition).
Furthermore, while the veteran has reported that he has
experienced headaches since military service, this is not
consistent with the medical evidence of record.
Specifically, in the March 2002 and July 2002 VA outpatient
medical reports, the veteran reported no history of
headaches.

In addition, there is no competent medical evidence of record
that relates the veteran's currently diagnosed headache
disorder to military service or to a service-connected
disability.  The only medical evidence of record which
provides such a nexus is the September 2008 VA neurological
disorders examination report.  However, the examiner who
provided that opinion subsequently reversed his opinion in
the October 2008 addendum based on further medical testing
that had occurred between the time of the original opinion
and the addendum.  As such, the September 2008 VA
neurological disorders examination report is not competent
etiological evidence, as the examiner has since refuted his
own statements.  The veteran's statements alone are not
sufficient to prove that his currently diagnosed headache
disorder is related to military service or to a
service-connected disability.  Espiritu, 2 Vet. App. at 495;
Grottveit, 5 Vet. App. at 93.  Accordingly, there is no
competent medical evidence of record which relates the
veteran's currently diagnosed headache disorder to military
service or to a service-connected disability.  As such,
service connection for a headache disorder is not warranted.

In reaching this decision, the Board considered the doctrine
of reasonable doubt.  However, as there is no competent
medical evidence of record which relates the veteran's
currently diagnosed headache disorder to military service or
to a service-connected disability, the doctrine is not for
application.  Gilbert, 1 Vet. App. 49.

ORDER

Service connection for Meniere's disease is denied.

Service connection for a headache disorder, to include as
secondary to service-connected tinnitus and bilateral hearing
loss, is denied.

____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs