Citation Nr: 0812898 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 05-30 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial compensable disability rating for bilateral hearing loss for the period prior to March 14, 2007. 2. Entitlement to a staged disability rating in excess of 30 percent for bilateral hearing loss for the period from March 14, 2007, forward. 3. Entitlement to service connection for a back and neck disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran served on active duty from January 1954 to January 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, in pertinent part, granted the veteran's claim of entitlement to service connection for bilateral hearing loss and assigned a noncompensable disability rating, effective November 29, 2002. This rating decision also denied the veteran's claim of entitlement to service connection for a back and neck disability. Subsequently, in a September 2007 rating decision, the RO granted the veteran an increased, 30 percent disability evaluation for his bilateral hearing loss, effective March 14, 2007. The veteran has not indicated that he is satisfied with this increased disability evaluation. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (even if a rating is increased during the pendency of an appeal, a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). Unfortunately, however, further development of the evidence is required before the Board can adjudicate the veteran's pending claim of entitlement to service connection for a back and neck disability. So, regrettably, this claim is being remanded to the RO via the Appeals Management Center (AMC). VA will notify him if further action is required on his part. Also, the Board notes that, in a February 2007 statement, the veteran withdrew his claims of entitlement to service connection for a laceration of the scalp and residuals of frostbite to the fingers. See 38 C.F.R. § 20.204(b), (c) (2007). FINDINGS OF FACT 1. For the period prior to March 14, 2007, no worse than Level IV hearing acuity in the right ear and Level II hearing acuity in the left ear has been demonstrated. 2. From March 14, 2007, no worse than Level VI hearing acuity in the right ear and Level VII hearing acuity in the left ear has been demonstrated. CONCLUSIONS OF LAW 1. The requirements are not met for an initial compensable disability rating for bilateral hearing loss, for the period prior to March 14, 2007. 38 U.S.C.A. § 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, Diagnostic Code 6100 (2007). 2. The requirements are not met for a staged initial disability rating in excess of 30 percent for bilateral hearing loss from March 14, 2007, forward. 38 U.S.C.A. § 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, this appeal arises from the veteran's disagreement with the initial evaluation following the grant of service connection for bilateral hearing loss. The United States Court of Appeals for the Federal Circuit and the United States Court of Appeals for Veterans Claims (Court) have 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. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, since VA's notice criteria was satisfied because the RO granted the veteran's claim for service connection, the Board also finds that VA does not run afoul of the Court's recent holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Duty to Assist With regard to the duty to assist, the claims file contains the veteran's post-service reports of private and VA medical treatment, as well as reports of VA examinations. Additionally, the claims file contains the veteran's own statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims for service connection has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schrafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, evaluations may be "staged." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This, in turn, will compensate the veteran for times since the effective date of his award when his disability may have been more severe than at other times during the course of his appeal. Analysis In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. §§ 4.85(b), 4.87 (2007). 38 C.F.R. § 4.86(a) provides that, when the pure-tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 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 will be evaluated separately. The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. During the January 2005 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 50 55 55 LEFT 40 45 55 65 60 The veteran had an average pure-tone threshold of 50 decibels and a speech discrimination score of 78 percent in his right ear, and an average pure-tone threshold of 56.25 decibels and a speech discrimination score of 84 percent in his left ear. This, in turn, correlates to Level IV hearing acuity in his right ear and Level II hearing acuity in his left ear. A Level IV and Level II designation do not warrant a compensable rating according to 38 C.F.R. § 4.85, Table VII. The provisions of 38 C.F.R. § 4.86(a) or (b) are not applicable. As such, there is no basis for a higher rating for the period prior to March 14, 2007. On March 14, 2007, the veteran was seen for complaints of right ear pain and increased hearing loss. Pure-tone audiometric testing revealed moderate sensorineural hearing loss through 1000 Hz, gradually sloping to moderately-severe to severe through 8000 Hz. Word recognition scores were fair (80 percent) in each ear. The examiner observed that the test results represented a significant decrease in hearing sensitivity since his January 2005 evaluation. During his most recent VA examination, in August 2007, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 75 80 85 LEFT 75 75 80 85 90 The veteran had an average pure-tone threshold of 75 decibels in his right ear and 78 percent speech discrimination. This correlates to Level V hearing acuity for this ear under 38 C.F.R. § 4.85, Table VI. For the left ear, for the relevant thresholds, his average decibel loss was 82 decibels and the speech discrimination score was 80 percent. This translates into Level V hearing for the left ear under Table VI. The provisions of 38 C.F.R. § 4.86(a) are applicable; under these provisions, the veteran's average decibel loss in his right ear translates into a Level VI designation and his average decibel loss in his left ear translates into a Level VII designation. Together, the Level VI and Level VII designations result in a 30 percent rating, but no higher, under 38 C.F.R. § 4.85, Table VII. In other words, the results of the veteran's most recent hearing evaluation clearly indicate there simply is no basis for assigning a rating higher than 30 percent for his bilateral sensorineural hearing loss on and after March 14, 2007. In denying the claim for a higher rating, for both indicated periods, the Board also has considered whether the veteran is entitled to a greater level of compensation on an extra- schedular basis. However, the record does not present such an exceptional or unusual disability picture so as to render impractical the application of the regular rating schedule standards. See 38 C.F.R. § 3.321(b)(1). There has been no showing by him or anyone on his behalf that his bilateral hearing loss has caused marked interference with his employment (meaning above and beyond that contemplated by his noncompensable and 30 percent schedular ratings for the periods indicated) or that his bilateral hearing loss has otherwise necessitated frequent periods of hospitalization. As such, the Board finds that this case does not warrant referral to the Director of Compensation and Pension Service for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Inasmuch as, for the reasons stated, the preponderance of the evidence is against the claims, they must be denied because the benefit-of-the-doubt rule is inapplicable. See 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER An initial compensable disability rating for bilateral hearing loss for the period prior to March 14, 2007, is denied. A disability rating in excess of 30 percent for bilateral hearing loss for the period from March 14, 2007, forward, is denied. REMAND A review of the record discloses that the veteran has not been afforded a VA examination to clarify the nature, severity, and etiology of his back and neck disability. In this regard, the Board acknowledges that the veteran reported a history of back and neck injuries due to a parachuting accident. The Board finds that, while such an injury cannot be confirmed in the veteran's service medical and personnel records, the veteran's DD Form 214 confirms that he received a Parachutist Badge during his service. In each case where a veteran is seeking service connection for any disability, due consideration must be given to the places, types and circumstances of the veteran's service. 38 U.S.C.A. § 1154(a) (West 2002). The veteran's history of in-service injury is therefore credible. The Board further points out that the veteran's complete service medical and personnel records are not currently on file, despite attempts by the RO to obtain this evidence. According to correspondence associated with the veteran's claims file, repeated attempts to locate the relevant service medical and personnel records have proven futile, and no additional records were found or are to be had. The veteran was informed in October 2005 that the RO was unable to obtain his records. It appears the missing records were destroyed in a 1973 fire at the National Personnel Records Center (NPRC) - a military records repository, and that attempts to reconstruct these records were unsuccessful. Likewise, the RO also sought to confirm the veteran's assertions by means of multiple civilian sources, but no records confirming the events of the veteran's service were available. When, as here, at least a portion of the service records cannot be located, through no fault of the veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit-of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Despite the veteran's missing records, his separation examination report is of record, which shows normal clinical evaluation of the spine, neck, and musculoskeletal system. There is also no post-service evidence of a diagnosis of a disability of the neck and/or low back until many years post- service. The veteran's private medical records first show treatment for his lumbar spine complaints in 1975. According to the medical evidence of record, the veteran had several post-service injuries to his back and neck. Specifically, the Board points out that the veteran has reported several work-related injuries, including herniated nucleus pulposus of multiple discs while working in 1975, as well as involvement in a motor vehicle accident in 2003, with back and neck injuries. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). Nevertheless, the veteran's treating provider, D. W. G., D.O., opined in a February 2007 letter that the veteran's recurring facet syndrome at T5 with thoracic and cervical complexes was related to the veteran's military service. However, Dr. G did not provide a rationale for his opinion, or otherwise refer to any credible supporting evidence that the veteran's back and neck disability was related to his service. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (the Board is not required to accept unsubstantiated or ambiguous medical opinions as to the origin of the veteran's disorder). Similarly, it is unclear whether Dr. G reviewed the veteran's claims file in its entirety, as his opinion does not address the veteran's multiple post-service injuries, including motor vehicle accidents and occupational injuries after his service. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Court rejected a medical opinion as "immaterial" where there was no indication the physician had reviewed relevant service medical records or any other relevant documents that would have enabled him to form an opinion on service connection on an independent basis). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that the veteran should be afforded a VA examination in order to determine nature and etiology of the veteran's back and neck disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). See also 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). Accordingly, the claim is remanded to the RO (via the AMC) for the following development and consideration: 1. Schedule the veteran for a VA orthopedic examination to determine the nature and etiology of his back and neck disability, including whether it is at least as likely as not (i.e., 50 percent or greater probability) related to his service in the military. In rendering this opinion, the examiner should conduct all necessary diagnostic testing and evaluation. The requested determination should also take into consideration the veteran's medical, occupational, and recreational history prior to, during, and since his military service. To assist in making this important determination, have the designated examiner review the claims file for the veteran's pertinent medical history, including a copy of this remand, the veteran's separation examination report, and pertinent post-service medical records. The medical basis of the examiner's opinion should be fully explained with reference to pertinent evidence in the record. If an opinion cannot be provided without resorting to speculation, please indicate this in the report. 2. Thereafter, the RO should consider all additional evidence received since the statement of the case in July 2007, and readjudicate the claim on appeal. If the benefit sought remains denied, the RO should issue a supplemental statement of the case and afford the appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. The purpose of this remand is to further develop the record, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs