Citation Nr: 1309557 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 10-14 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bronchitis. 2. Entitlement to an initial disability rating in excess of 20 percent for the service-connected bilateral hearing loss. ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran had 30 continuous years of honorable active service from September 1978 to September 2008. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The RO granted service connection for bilateral hearing loss and assigned an initial 20 percent disability rating, effective from October 1, 2008, the first day following discharge from service. The RO also denied a claim of service connection for bronchitis. The Veteran timely perfected appeals as to the issues of entitlement to an initial disability rating in excess of 20 percent for the service connected bilateral hearing loss and entitlement to service connection for bronchitis. The Veteran was scheduled for a personal hearing before the Board at VA's Central Office in Washington, DC in February 2013, as requested; however, he failed to appear. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2012). As no good cause has been alleged, or request received, this Veteran's request for a hearing is considered withdrawn. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The competent and probative evidence of record is credible, and establishes that the Veteran does not have a chronic respiratory disability manifested by bronchitis that began during service and has continued since service. 2. Throughout the period of the appeal, the Veteran's numeric designation of hearing impairment based on pure tone threshold average and speech discrimination scores (Table VI) and/or based on pure tone threshold average only (Table VIa) is no worse than Level V hearing in the left ear and no worse than Level VI hearing in the right ear. CONCLUSIONS OF LAW 1. A chronic respiratory disability manifested by bronchitis was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). 2. The criteria for an initial disability rating in excess of 20 percent for the service-connected bilateral hearing loss disability have not been met during any time period covered by this claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice 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; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO sent the Veteran pre-adjudicatory notice in December 2008, in connection with the Veteran's original claims for service connection for bronchitis and hearing loss. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. Notably, service connection was granted for hearing loss, and the Veteran is challenging the initial rating assigned. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In short, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, as he has provided statements in support of his claims and he has been notified of the types of evidence needed to substantiate his claims. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has also done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran a physical examination and spirometry testing with regard to his claim of service connection for bronchitis, and an audiological examination with appropriate testing with regard to his claim of service connection for hearing loss. VA has obtained all necessary medical opinions as to etiology. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. In sum, VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Service Connection The Veteran seeks service connection for bronchitis. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) . The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Competent and credible lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing entitlement to service connection. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh the lay testimony and make a credibility determination as to whether it supports service connection. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is therefore not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Nonetheless, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), tinnitus (ringing in the ears), varicose veins, etc., they are not competent to provide evidence on more complex medical questions beyond simple observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Id at 1337. See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks service connection for bronchitis. The Veteran's service treatment records (STRs) show that he was diagnosed with bronchitis on two occasions during his 30-year period of active service. The first diagnosis comes from an STR dated in January 2001. The Veteran presented complaining of a dry, irritating cough of one month's duration. The Veteran had been taking Sudafed, but it was not working. Examination revealed clear lungs. The assessment was URI (upper respiratory infection/bronchitis). The Veteran was prescribed Ceftin and cough medicine, among other medications. The second diagnosis of bronchitis is shown in November 2006. The Veteran once again reported a cough of over one-month's duration. Examination and chest-x-ray confirmed acute bronchitis and the Veteran was prescribed Zithromax and cough medicine. In both cases, the bronchitis was considered acute. There was no follow-up treatment requested or provided after either bout of bronchitis during service. Moreover, the Veteran did not list chronic bronchitis on his discharge examination in September 2008 as one of the listed conditions that he had experienced during service, or that he had at the time of discharge during service. At no time during service does any evidence of record reflect that the Veteran has chronic bronchitis, or other respiratory disability or disease manifested by chronic bronchitis. The Veteran underwent VA examination in January 2009 in conjunction with his claim. At that time, the Veteran reported being diagnosed with acute bronchitis since 1980. He reported that due to this respiratory condition, he has a dry cough with purulent sputum and orthpnea, and a scratchy feeling in his throat. With regard to functional impairment, the Veteran had to clear his throat while talking. The Veteran denied weight gain or loss due to the condition. He also denied loss of appetite, hemoptysis, daily cough with blood-tinged sputum, and, shortness of breath. The Veteran reportedly had not had asthma attacks. He reported that he did not contract infection easily from his respiratory condition, and has had no episodes of respiratory failure requiring respiration assistance from a machine. The Veteran received no treatment for the claimed condition, and he did not require the usage of outpatient oxygen therapy. On examination, breath sounds were symmetric. No rhonchi or rales were noted. Expiratory phase was within normal limits. The examiner found no diagnosis of acute bronchitis, because there was no pathology to render a diagnosis. The examiner explained that the Veteran did not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension or chronic respiratory failure with carbon dioxide retention. An interpretation of the pulmonary function test (PFT) indicated normal spirometry with no significant improvement in FVC, FEV1; and, according to the examiner, the FEV1 was the most indicative of the Veteran's current pulmonary function. Spirometry data confirmed that there was no discrepancy between the PFT findings and the clinical examination. According to the examiner, the Veteran provided good effort and a DLCO was not done as the PFT results were sufficient to evaluate the pulmonary status of the Veteran. In addition, a chest x-ray was within normal limits. The examiner concluded there were no limitations of the Veteran's daily activities as a result of the Veteran's claimed condition. In sum, the evidence in this case shows that the Veteran was treated in service for an acute bronchitis infection on two separate occasions. Moreover, at the time of discharge, as well as at the time of the 2009 VA fee basis examination, no bronchitis or bronchial disease was found. There is no doubt that the Veteran was treated in service for bronchitis twice, but his periods of service extended for 30 years, and there were nearly 5 years between the two bouts of acute bronchitis noted in the STR's. Two bronchial infections 5 years apart in the span of 30 years does not demonstrate a chronic disability during service. Moreover, the current evidence is negative for bronchitis. The Veteran's credibility is not at issue here; rather, the Veteran is not a medical expert, and is therefore not competent to provide the requisite medical diagnosis in this case. A diagnosis of a chronic pulmonary disorder or disease manifested by bronchitis is not the type of disability or disease that can be easily identified as a result of a cough, without other objective findings such as a positive spirometry or other findings only identifiable with medical instrumentation such as a stethoscope, for example. Although the Veteran is certainly competent to report his symptoms, this type of diagnosis is not one that a lay person can provide. While the Veteran's claim is sincere, the medical evidence in this case has clarified that the Veteran does not have a current chronic bronchitis condition, infection, or disease, and there is no competent evidence to the contrary. The Court of Appeals for Veterans Claims (CAVC) has specifically disallowed service connection where there is no present disability: "[c]ongress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim [for service connection]." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no basis on which to grant service connection. For these reasons, the Board finds that the preponderance of the evidence is against the claim; therefore, the benefit of the doubt provision does not apply. Service connection for a respiratory disability to include bronchitis is not warranted. II. Increased Rating - hearing loss The Veteran maintains that a compensable rating is warranted for his service-connected hearing loss since the effective date of service connection. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. When there is a question as to which of two 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. 38 C.F.R. § 4.7. Since the initial grant of service connection, the Veteran's hearing loss has been assigned a 20 percent disability rating. In cases such as this, where the Veteran appeals the initial rating assigned for a service-connected disability, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2006). The assignment of disability ratings for hearing impairment are derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the Rating Schedule, unlike extraschedular consideration under section 3.321(b) of the regulations, rely exclusively on objective test results). An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. This average is used in all cases (including those in Sec. 4.86) to determine the Roman numeral designation for hearing impairment where the axes intersect. Average pure tone decibel loss for each ear is located on Table VI along a horizontal axis, and percent of discrimination is located along a vertical axis. The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Code 6100. Additionally, VA recognizes certain exceptional patterns of hearing, pursuant to 38 C.F.R. § 4.86(a). Specifically, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or higher, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa of 38 C.F.R. § 4.85, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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. That numeral is then elevated to the next higher Roman numeral. Again, each ear will be evaluated separately. 38 C.F.R. § 4.86(b). At a VA audiological examination in December 2008, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 75 80 80 LEFT 45 55 55 65 The average in the right ear was 75 and the average in the left ear was 55. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 72 percent in the left ear. These figures, when applied to 38 C.F.R. § 4.85, Table VI, correspond to Level V hearing in the right ear and Level V hearing in the left ear. Application of these levels to Table VII at 38 C.F.R. § 4.85 results in a 20 percent rating. Importantly, however, the above audiogram findings show an exceptional pattern of hearing loss in the right ear, as defined under 38 C.F.R. § 4.86(a) based on the puretone thresholds of each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) being 55 decibels or more. According to 38 C.F.R. § 4.86(a), when the pure tone thresholds in the four specified frequencies 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. Each ear is evaluated separately. As noted above, the Roman numeral designation for hearing impairment under Table VI is V. When the figures are applied to 38 C.F.R. § 4.85, Table VIA, the Roman numeral designation for the right ear is VI. As the exceptional pattern of hearing is not shown in the left ear, the application of Table VIa is not an option for the left ear. Thus, the Roman numeral designation for the left ear remains V. Application of these levels (VI in the right ear and V in the left ear) to Table VII at 38 C.F.R. § 4.85 also results in a 20 percent rating. Regardless of which Table (VI or VIa) is used in this case, the outcome remains the same, and in either case, results in a 20 percent rating. The Veteran's hearing loss has no occupational impairment because the Veteran is retired and he did not retire as a result of his hearing loss. There is no other competent medical evidence of record to compare with the above findings, other than the Veteran's discharge examination audiometric findings from September 2008, and while these findings do show some hearing loss, the degree of the hearing loss is quite a bit less severe than what is shown after service; thus, the findings on the discharge examination do not serve to support the Veteran's claim for a higher rating. While the Veteran is certainly competent to describe his hearing loss and his level of functional impairment, which he has described as difficulty understanding people on the phone, and often having to ask people to repeat themselves, the medical findings on audiogram demonstrate that a rating in excess of 20 percent is not warranted for the service-connected hearing loss at any time since service in this case. The Veteran has not reported that his hearing loss has worsened during the course of the appeal. In light of these findings, a rating in excess of 20 percent is not warranted for the service-connected bilateral hearing loss at any time during the period of time covered by this claim. 38 C.F.R. § 4.85, Diagnostic Code 6100. The possibility of staged ratings was considered, however, there are no distinct periods of time where a rating in excess of 20 percent could be assigned based on the evidence of record. In reaching this decision, the Veteran's contentions regarding the severity of his hearing loss have been considered. There is no reason to doubt the credibility of the Veteran with respect to the fact that he has difficulty hearing. The findings on examination are consistent with the Veteran's assertions that he has difficulty hearing. The objective findings on examination, however, do not allow for the assignment of a higher rating in this case. The Board is bound by the mechanical formula provided by regulation for the assignment of ratings for service-connected hearing loss, and is without authority to grant a higher rating in this case. The numeric designations in this case correlate to no higher than a 20 percent disability rating. See 38 C.F.R. § 4.85, Tables VI-VII. The preponderance of the evidence is against the claim for a compensable disability rating for the service-connected hearing loss; thus, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. III. Extra Schedular Consideration Finally, the potential application of 38 C.F.R. § 3.321(b)(1) has also been considered. See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, the symptomatology and impairment caused by the Veteran's service-connected hearing loss are contemplated by the rating criteria for hearing loss. There is no symptom or manifestation stemming from the hearing loss that is not currently considered in the rating criteria for rating the hearing loss. The Veteran has not described any other manifestation of the ears other than hearing loss and there is no evidence of any ear disease. All of the Veteran's symptoms and manifestations have been considered based on all available rating criteria pertinent to the ears. In this case, comparing the Veteran's disability level and symptomatology of the hearing loss alone, to the rating schedule, the degree of disability throughout the entire appeal period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. In the absence of exceptional factors associated with the hearing loss, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. As such, referral for consideration for an extraschedular evaluation is not warranted here. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for chronic bronchitis is denied. An initial disability rating in excess of 20 percent for the service-connected bilateral hearing loss is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs