Citation Nr: 0812060 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-18 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable disability rating for defective hearing. 2. Entitlement to service connection for bipolar disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. Ahlstrom, Associate Counsel INTRODUCTION The veteran served on active duty from March 1975 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. VA audiometric test results from October 2004 show that the veteran had Level I hearing in both ears. 2. The veteran's bipolar disorder did not manifest in service, and was not chronic in service; symptoms of bipolar disorder were not continuous since service separation, and did not manifest for over 15 years after service separation; and the weight of the evidence demonstrates that the veteran's currently diagnosed bipolar disorder is not related to the veteran's active duty service. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for defective hearing have not been met for any period of the claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.85, Diagnostic Code 6100 (2007). 2. The veteran's bipolar disorder was not incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in her or his possession that pertains to the claim 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 agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, 38 U.S.C.A. § 5103 requires, at a minimum, that the Secretary notify the veteran that, to substantiate a claim, the veteran 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the veteran. Additionally, the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. 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 veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet App. at 43-44. Here, the duty to notify was satisfied by way of letters sent to the veteran in August 2004 and March 2006 that fully addressed all notice elements. The August 2004 letter informed the veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the veteran should provide, informed the veteran that it was his responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claim, asked the veteran to notify the VA of any additional evidence that may be helpful to the veteran's claim, and described the types of medical and lay evidence that could be relevant to show entitlement to an increased disability rating. The March 2006 letter also provided the veteran with notice of the disability rating regulations and how effective dates are assigned. The claim was readjudicated in April and November 2007. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Board is not aware of the existence of additional relevant evidence in connection with the veteran's claim that VA has not sought. The veteran's service medical records and private medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran was also accorded a VA examination in October 2004 as part of his claim for a compensable rating for service-connected defective hearing. 38 C.F.R. § 3.159(c) (4). No VA examination is necessary to satisfy the duty to assist in the veteran's claim for service connection for bipolar disorder. Under 38 U.S.C.A. § 5103A(d)(2), VA must obtain a medical examination or opinion when such is necessary to make a decision on a claim. Specifically, a VA examination is required where the record contains competent evidence of a current disability, and indicates that the disability or symptoms may be associated with military service, but does not contain sufficient evidence for the Secretary to make a decision. Id. There is no contemporaneous evidence of complaints of or treatment for a mental disorder in service. Further, the record also does not contain evidence of continuity of symptomatology of bipolar disorder, as there is no evidence of such a diagnosis for over 15 years following the veteran's discharge from service. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issue on appeal, and that VA has satisfied the duty to assist. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compensable Rating for Defective Hearing Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Where there is a question as to which of two evaluations shall 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Under the law and regulations that have been in effect since before the veteran filed his claim for an increased rating in July 2004, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 et. seq. Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). The Board notes that the veteran failed to report for scheduled VA audiological examinations in September and October 2007. See 38 C.F.R. § 3.655 (2006); Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991) (noting that that failure to cooperate by attending a requested VA examination may result in an adverse determination). Since the veteran failed to report to the September and October 2007 examinations, the Board is left to rely on the results of the VA audiological examination from October 2004. The October 2004 report showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 40 30 LEFT 0 5 10 40 30 Pure tone averages were 23 in the right ear and 21 in the left ear. Speech recognition ability was 100 percent in both ears. These results correspond to Level I for both ears under Table VI. These test scores result in the veteran's bilateral hearing loss being rated as noncompensably disabling under Diagnostic Code 6100. See 38 C.F.R. § 4.85. Therefore, a compensable evaluation is not warranted under Table VII. Id. This is true throughout the period of time during which his claim has been pending. Similarly, as is apparent from the results set out above, the veteran did not have thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz). Consequently, 38 C.F.R. § 4.86(a) is not for application. Likewise, the veteran did not have thresholds of 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. Consequently, 38 C.F.R. § 4.86(b) is not for application. No examiner has indicated that use of speech discrimination scores is inappropriate because of language difficulties. 38 C.F.R. § 4.85(c). Therefore, a compensable initial rating is not warranted under these rating criteria for the entire period of the claim. For these reasons, the Board finds that a preponderance of the evidence is against the veteran's claim, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Consequently, the Board finds that a compensable disability rating for the veteran's service-connected defective hearing is not warranted. Service Connection for Bipolar Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R.§ 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. The United States Court of Appeals for Veterans Claims (Court) has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). The veteran's service medical records show no signs of depression or nervousness at enlistment in January 1975. Upon his discharge in August 1978, the veteran denied ever having depression or nervous trouble, and he was found to be psychiatrically normal on separation examination. Post service evidence of record reveals that the veteran was apparently first diagnosed with bipolar disorder in 1994 (although there is not contemporaneous evidence to that effect). Therefore, the Board finds that the veteran's mood disorder did not manifest in service, and was not chronic in service. The first post-service evidence of treatment of a psychiatric condition is not documented until 1994, more than 15 years after the veteran's discharge from military service. Specifically, a private treatment record shows that the veteran sought treatment in August 2003 for mood swings and racing thoughts, and stated that he had run out of the medication used to control his bipolar disorder. The veteran then reported that he had been treated for bipolar disorder since 1994. The examining physician provided a diagnosis of bipolar disorder. Despite being instructed by the August 2004 notice letter to send any treatment records pertinent to this disorder, the veteran has not submitted any evidence related to his 1994 bipolar diagnosis, nor has he provided an authorization and consent form which would allow VA to obtain such evidence. Thus, overall, the post-service medical records, indicating bipolar disorder began years after service with no indication of an association to service, are found to provide evidence against the veteran's claim. The veteran contends that he was separated from service because of his bipolar disorder, and that he requested early separation due to depression caused by being separated from his family. The veteran also contends that he tried to get help through his "chain of command," but rather than help him, they granted him an early discharge. The veteran's service personnel records reveal that the veteran requested voluntary release and transfer to the Air Force Reserves for "miscellaneous personal reasons." These records do not contain any reference to depression or any other psychiatric symptoms, nor do the service medical records corroborate the veteran's contention that he sought help for a mental disorder. For these reasons, the Board finds that a preponderance of the evidence is against the veteran's claim, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Consequently, the Board finds that service connection for bipolar disorder is not warranted. ORDER A compensable disability rating for defective hearing is denied. Service connection for bipolar disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs