Citation Nr: 0814200	
Decision Date: 04/30/08    Archive Date: 05/08/08

DOCKET NO.  05-33 338	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES


1. Entitlement to service connection for anxiety disorder.

2. Entitlement to an initial rating higher than 10 percent 
from February 16, 2005, to May 29, 2007, and an initial 
rating higher than 30 percent from May 29, 2007, for 
bilateral hearing loss.
 


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Associate Counsel


INTRODUCTION

The veteran, who is the appellant, served on active duty from 
September 1964 to September 1966.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision in April 2005 of the 
Department of Veterans Affairs (VA) Regional Office (RO).

In April 2007, the veteran withdrew his request for a hearing 
before the Board.


FINDINGS OF FACT

1. Anxiety disorder was not affirmatively shown to have had 
onset during service; an anxiety disorder, first documented 
after service, is unrelated to an injury, disease, or event 
of service origin.

2. From February 16, 2005, to May 29, 2007, bilateral hearing 
loss was manifest in by auditory acuity level of III for the 
right ear and IV for the left; and from May 29, 2007, 
bilateral hearing loss is manifested by an auditory acuity 
level of VII for the right ear and V for the left ear.


CONCLUSIONS OF LAW

1. Anxiety disorder was not incurred in or aggravated by 
service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 
2007); 38 C.F.R. § 3.303 (2007).

2. From February 16, 2005, to May 29, 2007, the criteria for 
an initial rating higher than 10 percent and from May 29, 
2007, the criteria for an initial rating higher than 30 
percent for bilateral hearing loss have not been met.  §§ 
1155, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 4.85, 
Diagnostic Code 6100 (2007). 

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA amended VA's duties to notify and to assist a 
claimant in developing information and evidence necessary to 
substantiate the claims.  38 U.S.C.A. §§ 5103(a), 5103A; 38 
C.F.R. § 3.159. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of 
the information and evidence not of record that is necessary 
to substantiate the claims, which information and evidence VA 
will obtain, and which information and evidence the claimant 
is expected to provide.  Under 38 C.F.R. § 3.159, VA must 
request that the claimant provide any evidence in the 
claimant's possession that pertains to the claims.

The VCAA notice requirements apply to all five elements of a 
service connection claim.  The five elements are: 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). 

In a claim for increase, the VCAA notice requirements are the 
type of evidence needed to substantiate the claim, namely, 
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.  Also, if the 
Diagnostic Code under which the claimant is rated contains 
criteria necessary for entitlement to a higher disability 
rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the VA must provide at least 
general notice of that requirement to the claimant.  Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008). 

The VCAA notice must be provided to a claimant before the 
initial unfavorable adjudication by the RO.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  

On the claim of service connection for anxiety disorder, the 
RO provided pre- and post- adjudication VCAA notice by 
letters, dated in February 2005 and in March 2006.  The 
veteran was notified of the type of evidence needed to 
substantiate the claim of service connection, namely, 
evidence of current disability; evidence of an injury or 
disease or event in service, causing injury or disease; and 
evidence of a relationship between the current disability and 
the injury, disease, or event in service.  The veteran was 
also notified that VA would obtain service records, VA 
records, and records of other Federal agencies and that he 
could submit private medical records or authorize VA to 
obtain private medical records on his behalf.  The veteran 
was asked to submit any evidence that would include that in 
his possession.  The notice included the provisions for 
degree of disability assignable and for the effective date of 
the claim.  

As for content of the VCAA notice, the documents 
substantially complied with the specificity requirements of 
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying 
evidence to substantiate a claim and the relative duties of 
VA and the claimant to obtain evidence); of Charles v. 
Principi, 16 Vet. App. 370 (2002) (identifying the document 
that satisfies VCAA notice); of Pelegrini v. Principi, 
18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of 
Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the 
elements of the claim).  

To the extent that the VCAA notice of the provisions for the 
degree of disability assignable and for the effective date 
were provided after the initial adjudication, the procedural 
defect was cured as after the RO provided content-complying 
VCAA notice, the claim was readjudicated as evidenced by the 
supplemental statement of the case, dated in June 2007.  
Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing 
error cured by adequate VCAA notice and subsequent 
readjudication without resorting to prejudicial error 
analysis.).

On the claim for increase for bilateral hearing loss, the RO 
provided the veteran with content-complying VCAA notice on 
the underlying claim of service connection for hearing loss 
by letter, dated in February 2005.  

Where, as here, service connection has been granted and the 
initial disability rating has been assigned, the claim has 
been more than substantiated, it has been proven, thereby 
rendering 38 U.S.C.A. § 5103(a) notice no longer required 
because the purpose that the notice was intended to serve has 
been fulfilled.  Furthermore, once a claim for service 
connection has been substantiated, the filing of a notice of 
disagreement with the RO's rating of the disability does not 
trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, 
further VCAA notice under 38 U.S.C.A. § 5103(a) and 
§ 3.159(b)(1) is no longer applicable in the claim for 
initial higher ratings for bilateral hearing loss.  Dingess, 
19 Vet. App. 473.

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to 
assist the claimant in obtaining evidence necessary to 
substantiate the claims.  

On the claim of service connection, as there is no competent 
evidence that anxiety may be associated with an established 
event, injury, or disease in service or with another service-
connected disability, the requirements for a VA examination 
or VA medical opinion under the duty to assist have not been 
meet.  38 C.F.R. § 3.159(c)(4). 

On the claim for increase, the veteran was afforded VA 
audiological examinations in August 2005 and May 2007.

As the veteran has not identified any additional evidence 
pertinent to his claims, not already of record, and as there 
are no additional records to obtain, the Board concludes that 
the duty-to-assist provisions of the VCAA have been complied 
with.




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Principles of Service Connection

Service connection may be granted for a disability which is 
the result of disease or injury incurred in or aggravated by 
service.  38 U.S.C.A. § 1110; 38 C.F.R. 3.303(a). 

Service connection means that the facts, shown by evidence, 
establish that a particular injury or disease resulting in 
disability was incurred coincident with service, or if 
preexisting such service, was aggravated by service.  This 
may be accomplished by affirmatively showing inception or 
aggravation during service. 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, as distinguished from 
merely isolated findings or a diagnosis including the word 
"chronic."  Continuity of symptomatology after discharge is 
required where the condition noted during service is not, in 
fact, shown to be chronic or where the diagnosis of 
chronicity may be legitimately questioned.  38 C.F.R. § 
3.303(b).

Service connection may also be warranted 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).

Factual Background

The veteran's DD 214 form shows that his military 
occupational specialty was Automatic Weapons (AW) Crewman.  
He was awarded the National Defense Service Medal and the 
Marksman (Rifle M-14) Badge.  

The service medical records, including the reports of 
entrance and separation examinations, contain no complaint, 
finding, history, treatment, or diagnosis of  anxiety or of 
any other psychiatric abnormality.  

After service, VA records show that in April 2005 the veteran 
complained that he felt nervous while riding in a car.  In 
May 2005, the veteran's active health problems included 
anxiety disorder.

In a statement in October 2005, the veteran stated that while 
in the service he drove tanks over canals and bridges, which 
caused him to develop extreme anxiety and nervousness.  He 
indicated that this problem persisted after service and he 
presently experienced anxiety and nervousness when driving.  
The veteran described coping with this condition by avoiding 
interstates or highways. 

Analysis

On the basis of the service medical records, anxiety disorder 
was not affirmatively shown during service.  38 U.S.C.A. § 
1110; 38 C.F.R. §3.303(a).  

Although anxiety disorder was not documented during service, 
the veteran is competent to describe symptoms of anxiety, but 
for the showing of a chronic disability in service there is 
required a combination of manifestations sufficient to 
identify the disease entity and sufficient observation to 
establish chronicity at the time.  As the service medical 
records lack the documentation of the combination of 
manifestations sufficient to identify anxiety disorder and 
sufficient observation to establish chronicity during 
service, then a showing of continuity of symptomatology after 
service is required to support the claim.

After service, VA records first document anxiety disorder as 
a health problem in 2005, more than 38 years after discharge 
from service.  The absence of documented complaints of 
anxiety from 1966 to 2005, weighs against the claim on the 
basis of continuity of symptomatology.  38 C.F.R. § 3.303(b); 
Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom.  
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was 
proper to consider the veteran's entire medical history, 
including a lengthy period of absence of complaints.).  The 
Board finds the absence of medical evidence of continuity of 
symptomatology outweighs the veteran's statements of 
continuity, rendering the lay evidence less probative than 
the medical evidence on the question of continuity of 
symptomatology.  Buchanan v. Nicholson, 451 F.3d 1331, 1336 
(Fed. Cir. 2006).  For this reason, the preponderance of the 
evidence is against the claim of service connection for 
anxiety disorder based on continuity of symptomatology under 
38 C.F.R. § 3.303(b).  

As for service connection based on the initial documentation 
of anxiety disorder in 2005 under 38 C.F.R. § 3.303(d), there 
is no competent medical evidence that associates or links the 
current anxiety disorder to an established event or injury or 
disease of service origin. 

To the extent that lay evidence can be competent to establish 
a diagnosis of a medical condition, a layperson is competent 
to identify a medical condition where the condition is a 
simple one, such as a broken leg as opposed to a form of 
cancer. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 
2007).

In this case, a psychiatric disorder, anxiety disorder, is 
not a condition under case law, where lay observation has 
been found to be competent and the determination as to the 
presence of the disability is medical in nature, that is, not 
capable of lay observation.  See Savage v. Gober, 10 Vet. 
App. 488, 498 (1997) (On the question of whether the veteran 
has a chronic condition since service, the evidence must be 
medical unless it relates to a condition as to which, under 
case law, lay observation is competent); see Barr v. 
Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is 
competent to establish the presence of observable 
symptomatology, where the determination is not medical in 
nature and is capable of lay observation).

And although the veteran is competent to describe symptoms of 
anxiety, once the veteran goes beyond the description of the 
symptoms or features of a claimed condition to expressing an 
opinion that involves a question of medical diagnosis that is 
medical in nature and not capable of lay observation, 
competent medical evidence is required to substantiate the 
claim.  

Competent medical evidence means evidence provided by a 
person who is qualified through education, training, or 
experience to offer a medical diagnosis, statement, or 
opinion.   For these reasons, the Board rejects the veteran's 
statements as competent evidence sufficient to establish a 
diagnosis of anxiety disorder contemporaneous with service. 
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

To the extent that the veteran relates the current anxiety 
disorder to service, although the veteran is competent to 
describe symptoms of anxiety, once the veteran goes beyond 
the description of the symptoms or features of anxiety to 
expressing an opinion that involves a question of medical 
causation, not capable of lay observation, competent medical 
evidence is required to substantiate the claim.  Competent 
medical evidence means evidence provided by a person who is 
qualified through education, training, or experience to offer 
a medical diagnosis, statement, or opinion.  As a lay person, 
the veteran is not qualified through education, training, and 
expertise to offer an opinion on medical causation.  For 
these reasons, the Board rejects the veteran's statements as 
competent evidence to establish an association or link 
between the current anxiety disorder and an established event 
or injury or disease of service origin.  Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

As the Board may consider only independent, competent medical 
evidence to support its findings as to a medical diagnosis or 
medical causation, which in this case, are not capable of lay 
observation, and as there is no favorable competent medical 
evidence that the current anxiety disorder was present is 
service or related to an event, injury, or disease of service 
origin, the preponderance of the evidence is against the 
claim, and the benefit-of-the-doubt standard of proof does 
not apply.  38 U.S.C.A. § 5107(b).



Rating Principles

A disability rating is determined by the application of VA's 
Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. 
Part 4.  

The percentage ratings contained in the Rating Schedule 
represent, as far as can be practicably determined, the 
average impairment in earning capacity resulting from 
diseases and injuries incurred or aggravated during military 
service and their residual conditions in civil occupations.  
Separate diagnostic codes identify the various disabilities.  
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

The Board will consider whether separate ratings may be 
assigned for separate periods of time based on facts found, a 
practice known as "staged ratings," whether it is an 
initial rating case or not.  Fenderson v. West, 12 Vet. 
App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 
(2007).

Hearing Loss

The rating for hearing loss is determined under the criteria 
in 38 C.F.R. §§ 4.85 and 4.86.

The Rating Schedule provides a table (Table VI) to determine 
a Roman numeral designation (I through XI) for hearing 
impairment, based on puretone thresholds and controlled 
speech discrimination (Maryland CNC) testing.  Table VII is 
used to determine the rating assigned by combining the Roman 
numeral designations for hearing impairment of each ear.  38 
C.F.R. § 4.85. 

The "puretone threshold average" as used in Tables VI, is 
the sum of the puretone thresholds at 1000, 2000, 3000, and 
4000 Hertz, divided by four.  This average is used in all 
cases to determine the Roman numeral designation for hearing 
impairment from Table VI or VIa.  38 C.F.R. § 4.85(d).

Ratings for hearing impairment are derived by the mechanical 
application of the Rating Schedule to the numeric 
designations assigned after audiometry evaluations are 
rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

Where there is an exceptional pattern of hearing impairment 
as defined in 38 C.F.R. § 4.86 the rating may be based solely 
on puretone threshold testing.  An exceptional pattern of 
hearing impairment occurs when the puretone thresholds in 
each of the four frequencies 1000, 2000, 3000, and 4000 Hertz 
are 55 decibels or greater or when the puretone threshold at 
1000 Hertz is 30 decibels or less, and the threshold at 2000 
Hertz is 70 decibels or more.  38 C.F.R. § 4.86(a), (b).

An Initial Rating Higher than 10 Percent 
from February 16, 2005, to May 29, 2007

The record contains a VA audiological evaluation, dated in 
August 2005.

In August 2005, the puretone thresholds in decibels at the 
tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the 
RIGHT ear were 45, 85, 75, and 75, respectively; and in the 
LEFT ear 55, 70, 60, and 55, respectively.  The puretone 
threshold average in the right ear was 70, and the average in 
the left ear was 60.  Speech discrimination in the right ear 
was 86 percent and 88 percent in the left ear.

Applying the results to TABLE VI, the findings of the VA 
examination yielded a numerical designation of III for the 
right ear as the average puretone decibel loss of 70 is in 
the range of between 66 to 73 average pure tone decibel loss, 
and the speech discrimination score of 86 percent is in the 
range between 82 and 89 percent speech discrimination.  For 
the left ear, the average puretone decibel loss of 60 is in 
the range of between 58 to 65 average pure tone decibel loss, 
and the speech discrimination score of 88 percent is in the 
range between 82 and 89 percent speech discrimination, which 
yields a numerical designation of III. 

Applying the results to TABLE VI, entering the numeral 
designations of III for the right ear and III for the left 
ear to TABLE VII yields a noncompensable disability rating 
under Diagnostic Code 6100.

As the pure tone threshold at each of the four specified 
frequencies 1000, 2000, 3000, and 4000 Hertz were 55 decibels 
or more on the left ear, an exceptional pattern of hearing 
impairment is shown under 38 C.F.R. § 4.86(a).  Applying the 
pure tone threshold at each of the four specified frequencies 
1000, 2000, 3000, and 4000 Hertz of 55 decibels or more to 
Table VIA produces a numerical designation for the left ear 
of IV.  Applying the results to TABLE VIA, entering the 
numeral designations of III for the right ear and IV for the 
left ear to TABLE VII yields a disability rating of 10 
percent under Diagnostic Code 6100.

As the puretone threshold was not 30 decibels or less at 1000 
Hertz and 70 decibels or more at 2000 Hertz, an exceptional 
pattern of hearing impairment was not shown under 38 C.F.R. § 
4.86(b). 

The August 2005 VA audiological evaluation, which was the 
basis for the RO's initial assignment of a 10 percent rating, 
does not indicate that the veteran's hearing loss at that 
time approached the level which would allow for the 
assignment of a higher rating.

An Initial Rating Higher than 30 Percent from May 29, 2007

At the May 2007 VA examination, the puretone thresholds in 
decibels at the tested frequencies of 1000, 2000, 3000, and 
4000 Hertz in the RIGHT ear were 65, 85, 80, and 75, 
respectively; and in the LEFT ear 55, 65, 55, and 55, 
respectively.  The puretone threshold average in the right 
ear was 76 and the average in the left ear was 58.  Speech 
discrimination in the right ear was 64 percent and 72 percent 
in the left ear.

Applying the results to TABLE VI, the findings of the VA 
examination yields a numerical designation of VII for the 
right ear as the average puretone decibel loss of 76 is in 
the range of between 74 to 81 average pure tone decibel loss, 
and the speech discrimination score of 64 percent is in the 
range of between 60 and 66 percent speech discrimination.  
For the left ear, the average puretone decibel loss of 58 is 
in the range of between 58 to 65 average pure tone decibel 
loss, and the speech discrimination score of 72 percent is in 
the range of between 69 to 74 percent speech discrimination, 
which yields a numerical designation of V.  Applying the 
results to TABLE VI, entering the numeral designations of VII 
for the right ear and V for the left ear to TABLE VII yields 
a disability rating of 30 percent under Diagnostic Code 6100.

As the pure tone threshold at each of the four specified 
frequencies 1000, 2000, 3000, and 4000 Hertz were 55 decibels 
or more on the right ear and the left ear, an exceptional 
pattern of hearing impairment is shown under 38 C.F.R. § 
4.86(a).  Applying the pure tone threshold at each of the 
four specified frequencies 1000, 2000, 3000, and 4000 Hertz 
of 55 decibels or more to Table VIA produces a numerical 
designation for the right ear of VI, and IV in the left ear.  
As the numerical designation of VI in the right ear and IV in 
the left ear, are less than the numerical designations of VII 
for the right ear and V for the left ear in Table VI, the use 
of Table VIA does not result in a higher rating.  38 C.F.R. § 
4.85, Table VII, Diagnostic Code 6100.

As the puretone threshold was not 30 decibels or less at 1000 
Hertz and 70 decibels or more at 2000 Hertz, an exceptional 
pattern of hearing impairment was not shown under 38 C.F.R. § 
4.86(b). 

Although the Board is precluded by regulation from assigning 
an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the 
first instance, the Board is not precluded from considering 
whether the case should be referred to the Director of VA's 
Compensation and Pension Service. 

In various statements the veteran stated that because of his 
hearing impairment he has experienced difficulty functioning.  
Nevertheless, the evidence does not indicate that at any time 
during the appeal, hearing loss is so unusual or exceptional 
as to render impractical the application of the regular 
schedular standards.  For this reason, the Board finds no 
basis to refer this case for consideration of an 
extraschedular rating.

For these reasons, the preponderance of the evidence is 
against the claim and the benefit-of-the-doubt standard of 
proof does not apply.  38 U.S.C.A. § 5107(b). 


ORDER


Service connection for anxiety disorder is denied.  

An initial rating higher than 10 percent from February 16, 
2005, to May 29, 2007, and an initial rating higher than 30 
percent from May 29, 2007, for bilateral hearing loss is 
denied. 

____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs