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