Citation Nr: 0810066 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-26 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to an initial rating higher than 30 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant/veteran and his daughter ATTORNEY FOR THE BOARD Kristi Barlow, Counsel INTRODUCTION The veteran served on active duty from July 1941 to June 1945, including honorable service in the Pacific theater of operations during World War II. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board first considered this appeal in January 2007 and remanded the claim of entitlement to service connection for a back disorder for additional development of the medical record, and for a specific adjudication regarding an incident that is alleged to have occurred during a period of combat service. Unfortunately, the Appeals Management Center (AMC) in Washington, DC, did not comply with the Board's remand orders and returned the matter for further appellate consideration. In light of the favorable determination presently being made with respect to this issue, the Board finds that another remand to ensure compliance with the January 2007 remand is not necessary as a decision on the merits at this time is not prejudicial to the veteran. The claim of entitlement to a higher initial rating for bilateral hearing loss was remanded in January 2007 pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The AMC issued a Statement of the Case with respect to that issue in September 2007, but the veteran did not respond. In October 2007, however, the veteran's representative stated in its VA Form 646, Statement of Accredited Representative in Appealed Case, that they had no further argument. The Board liberally construes the October 2007 correspondence as a substantive appeal under 38 C.F.R. § 20.202 and takes jurisdiction of the claim. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran has degenerative disc disease of the lower thoracic and the lumbosacral spine as a result of injury sustained during service. 3. The veteran has hearing loss in the right ear with a Numeric Designation of VII and hearing loss in the left ear with a Numeric Designation of VI. CONCLUSIONS OF LAW 1. A back disability was incurred as a result of active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. Criteria for a rating higher than 30 percent for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.85, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his/her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Board finds that VA has substantially satisfied the duties to notify and assist with respect to the claim of entitlement to service connection for a back disability. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the veteran in proceeding with this appeal given the favorable nature of the Board's decision. Any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected, if necessary, by the RO following the Board's decision when action is taken to effectuate the grant of service connection. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter dated in July 2004, VA notified the veteran of the information and evidence needed to substantiate and complete his claim of entitlement to service connection for bilateral hearing loss, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claim was granted in February 2005. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, the Board finds that VA met its obligation to notify the veteran and no further notice is needed with respect to the downstream issue of entitlement to a higher initial rating for hearing loss. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence, affording him physical examinations, and by affording him the opportunity to give testimony before the Board in September 2006. It appears that all known and available records relevant to the issues here on appeal have been obtained and are associated with the veteran's claims file, and the veteran does not appear to contend otherwise. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. Accordingly, the Board now turns to the merits of the veteran's claims. Service Connection The veteran contends that he injured his back during basic training and again during combat just prior to his discharge from service in 1945. He credibly testified that he has experienced pain in his mid- to low back since the combat injury. The veteran's daughter testified that her father had told her since she was a young child about an incident during combat service when a tomb door fell on his back and injured him. She also stated that the veteran had complained of back pain for all of her life, but that he did not seek treatment very often. The veteran reports that he sought treatment for back pain about five years after his discharge from service and periodically since that time. He provided the names of private physicians, but it appears that they are no longer in practice and/or alive and, therefore, their records are not available. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. If there is no evidence of a chronic condition during service, or an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). If service connection is to be established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Id. In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign or expedition, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions or hardships of such service notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary and the reasons for granting or denying service connection in each case shall be recorded in full. See 38 U.S.C.A. § 1154(b). Under Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), and Caluza v. Brown, 7 Vet. App. 498 (1995), the correct application 38 U.S.C.A. § 1154(b) requires a three-step, sequential analysis: (1) Has the claimant produced "satisfactory lay or other evidence of such injury or disease." "Satisfactory evidence" is defined as "credible evidence that would allow a reasonable fact finder to conclude that the alleged injury or disease was incurred in or aggravated by the veteran's combat service." (2) Is the proffered evidence "consistent with the circumstances, conditions, or hardships of such service." (3) Once these first two steps are met, the Secretary "shall accept" the veteran's evidence as "sufficient proof of service connection," i.e., incurrence during service, even if no official record of such incurrence exists, unless the government can meet the burden of showing "clear and convincing evidence to the contrary." In Collette, it was expressly held that during the first two steps of this sequential analysis, the credibility determination must be made as to the veteran's evidence standing alone, not weighing the veteran's evidence with contrary evidence. Only in the third step may contrary evidence, such as a Report of Medical Examination at Separation, be brought into play. Collette, 82 F.3d at 393. The veteran's service medical records show that he was treated for myositis of the lumbar musculature in 1941. Consistent with the veteran's assertion that he did not get treated after the 1945 combat injury, there is no medical record of a back injury in 1945. Also consistent with the veteran's assertion that he did not report his back injury upon separation examination, there is no evidence of a back disability at the time of discharge from service in June 1945. The veteran's wife submitted a statement in June 2004 reflecting her recollection of the veteran complaining of back pain ever since he returned from World War II. Her statement includes references to the veteran's combat service. A magnetic resonance imaging (MRI) report dated in 1996 was submitted showing degenerative disc disease. Upon VA examination in March 2005, the veteran related a history of back pain since service. The examiner reviewed the claims folder and diagnosed degenerative disc disease of the lumbosacral spine. The examiner generally opined that the veteran's current back disability was not related to the myositis treated during service, but was age-related as there was apparently no need for treatment until much later in life. Unfortunately, the examiner did not render an opinion as to whether the current disability was a result of the injury described as having been sustained in 1945 during combat. Because this examination report and opinion were clearly inadequate, the Board remanded this matter in January 2007 for purposes of conducting an additional examination and obtaining a new opinion. In September 2005, the veteran presented for treatment with a private orthopedist. The veteran has described this encounter as the most thorough examination he has ever had. The specialist appears to have reviewed service records as he commented on the diagnosis of myositis possibly being spurious because it was rendered without any real testing performed. The specialist opined that there was a definite connection between the currently diagnosed degenerative disc disease and the in-service injury because the veteran had experienced pain since the time of the injury. The veteran underwent a second VA examination in June 2007 by the same examiner who evaluated him in March 2005. The examiner rendered the same diagnosis and the same opinion. As before, the examiner again did not provide the requested opinion as to the likelihood of the veteran's degenerative disc disease being related to an undocumented combat injury. This examination report was grossly inadequate in failing to answer the medical opinion questions asked by the Board, and should have been returned to the examiner for correction by the agency of original jurisdiction (AOJ). For the reasons explained below, and taking into consideration the veteran's advanced age, the occurrence of a prior remand, and the advancement of this case on the Board's docket, the Board finds that a second remand to obtain a full and complete examination report is not required. The veteran is competent to testify as to symptoms such as pain which are non-medical in nature, however, he is not competent to render a medical diagnosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). A veteran's testimony regarding what occurred during service is competent and probative evidence. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); also see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge). Pain itself is not a disability under VA regulations, however, it may constitute a symptom of a disability about which the veteran is competent to testify. See Locklear v. Nicholson, 20 Vet. App. 410 (2006). The Board finds the veteran competent to report that he has experienced back pain since his period of service. His reports are corroborated by his wife and daughter notwithstanding the fact that no medical evidence has been produced reflecting treatment for back pain until 1996. The veteran's report of an injury during service is consistent with his personnel records showing that he served in the Pacific theater of operations during World War II and there is no evidence to suggest that the testimony of the veteran and/or the testimony of his daughter with respect to that injury is inaccurate. As such, the Board finds no evidence to the contrary and will accept the veteran's assertion as credible that he sustained a combat injury to his back in 1945. Given the evidence as outlined above, the Board finds the opinion rendered by the VA examiner in both 2005 and 2007 to be less than useful as it only speaks to the one incident of treatment for myositis during service. The only opinion that speaks to an in-service injury is the private orthopedist. Although the Board is not bound by a medical opinion based solely upon an unsubstantiated history as related by the veteran, the Board finds the history upon which the private opinion was based to be not only consistent with the record, but also credible. Accordingly, and resolving all reasonable doubt in favor of the veteran, the Board finds that the currently diagnosed degenerative disc disease of the low back is a consequence of an injury incurred during service, and thus service connection is granted for this condition. Increased Rating Outside of one statement from the veteran in August 2005 that he has worsening hearing loss, he has not put forth any assertions as to why he believes the 30 percent initial rating assigned for bilateral hearing loss is inaccurate. The Board notes that, at his hearing in September 2006, the veteran had difficulty hearing and had to be assisted in understanding questions by his daughter. Treatment records show that he was fitted for hearing aids in 2005 and has been pleased with the assistance they provide in his ability to hear. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Diagnostic Code 6100 sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation. Scores are simply matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. 38 C.F.R. § 4.86(a) allows for the use of either Table VI or Table VIA in determining the appropriate numeric designation when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. On authorized audiological evaluation in December 2004, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 70 75 85 LEFT 40 40 65 75 95 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 68 percent in the left ear. Treatment records show that the veteran was fit with hearing aids in March 2005 and reported being very satisfied the following month. The veteran was found to have a post- fitting communication assessment score of 0, suggesting no perceived hearing handicap, as opposed to the score of 18 he had prior to the fitting which showed mild to moderate hearing handicap. The Board notes that there are private audiology reports of record that are not in the appropriate format to be used for rating purposes, and therefore are not sufficient for showing entitlement to a higher evaluation. Given the evidence of record, the Board finds that Table VI is the appropriate table to be used in determining the numeric designation to assign for the veteran's hearing impairment as there is no evidence of an exceptional pattern of hearing impairment. Accordingly, the Board finds that the veteran has hearing loss in the right ear with a Numeric Designation of VII and hearing loss in the left ear with a Numeric Designation of VI. When these designations are matched against Table VII, the appropriate rating for assignment is shown to be 30 percent. Therefore, a rating higher than 30 percent cannot be assigned on a schedular basis. Additionally, there is nothing in the evidence of record to suggest that there has been any variation in the severity of the hearing loss condition since service connection was established that would support the assignment of staged ratings, so the 30 percent rating is assigned for the entire period of time. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. § 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." The veteran does not assert that he is unemployable due to his service-connected hearing loss, and he has not identified any specific factors which may be considered to be exceptional or unusual in light of VA's schedule of ratings. The Board has been similarly unsuccessful in locating exceptional factors. The veteran has not required frequent periods of hospitalization for treatment of his hearing loss, and his treatment records are void of any finding of exceptional limitation beyond that contemplated by the schedule of ratings. The Board does not doubt that limitation caused by hearing loss has an adverse impact on employability; however, loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a) and 4.1. 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Because the Board finds that there is no evidence of exceptional factors, a remand for referral pursuant to 38 C.F.R. § 3.321(b)(1) for consideration of assignment of an extraschedular evaluation is not required. See Bagwell v. Brown, 9 Vet. App. 337, 338- 39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Consequently, the Board finds that the 30 percent evaluation assigned in this decision adequately reflects the clinically established impairment experienced by the veteran and a higher rating must be denied. ORDER Service connection for a back disability is granted, subject to the laws and regulations governing the award of monetary benefits. An initial rating higher than 30 percent for bilateral hearing loss is denied. ____________________________________________ Richard C. Thrasher Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs