Citation Nr: 0925086 Decision Date: 07/06/09 Archive Date: 07/21/09 DOCKET NO. 05-39 307A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable disability rating for bilateral hearing loss. 2. Entitlement to service connection for arthritis bilateral hands. 3. Entitlement to service connection for low back disorder with arthritis. 4. Entitlement to service connection for peripheral neuropathy lower extremity. 5. Entitlement to service connection for bilateral knee condition secondary to low back problem. 6. Entitlement to service connection for arthritis bilateral rib cage. 7. Entitlement to service connection for asbestosis and bilateral lung disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from November 1953 to November 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2004 and April 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran indicated on his July 2007 VA Form 9 that he wished to testify at a BVA hearing. In April 2009 correspondence, he withdrew the hearing request. The issue of entitlement to service connection for asbestosis and bilateral lung disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In July 2008 correspondence the Veteran indicated that he wished to withdraw his appeal concerning the issues of entitlement to service connection for arthritis bilateral hands, low back disorder with arthritis, peripheral neuropathy lower extremity, bilateral knee condition secondary to low back problem, and arthritis bilateral rib cage. 2. The Veteran has Level II hearing loss in the right ear and Level IV hearing loss in the left ear, evaluated as non- compensable. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran concerning the issues of entitlement to service connection for arthritis bilateral hands, low back disorder with arthritis, peripheral neuropathy lower extremity, bilateral knee condition secondary to low back problem, and arthritis bilateral rib cage are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2008). 2. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.85, Diagnostic Code 6100 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issues In July 2008 correspondence the Veteran indicated that he wished to withdraw his appeal concerning the issues of entitlement to service connection for arthritis bilateral hands, low back disorder with arthritis, peripheral neuropathy lower extremity, bilateral knee condition secondary to low back problem, and arthritis bilateral rib cage. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran has properly withdrawn his appeal concerning the issues of entitlement to service connection for arthritis bilateral hands, low back disorder with arthritis, peripheral neuropathy lower extremity, bilateral knee condition secondary to low back problem, and arthritis bilateral rib cage, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. Bilateral Hearing Loss Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. "Staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's bilateral hearing loss is currently evaluated as non-compensable. Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once disability is established, levels of hearing loss are determined by considering the average pure tone threshold and speech discrimination percentage scores. 38 C.F.R. § 4.85(b). See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). The provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing loss. The exceptional patterns addressed in this section are present when the puretone threshold at 1000, 2000, 3000 and 4000 Hz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. The Veteran was afforded a VA audiological examination in April 2004 during which the examiner noted the Veteran's chief complaint was that he "[c]annot hear well and constant ringing in ears." The Veteran's greatest areas of difficulty wer reportedly "[t]elephone and in crowds." The following examination results were reported: Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 dB 45 dB 70 dB 85 dB Left Ear 20 dB 60 dB 90 dB 80 dB Puretone Threshold Average Right Ear 56.25 dB Left Ear 62.5 dB Speech Recognition Right Ear 90% Left Ear 94% A second VA audiological examination in August 2007 reported the following: Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 dB 60 dB 80 dB 85 dB Left Ear 25 dB 60 dB 95 dB 105 dB Puretone Threshold Average Right Ear 61.25 dB Left Ear 71.25 dB Speech Recognition Right Ear 84% Left Ear 88% A third VA audiological examination in November 2008 reported the following: Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 dB 55 dB 75 dB 75 dB Left Ear 25 dB 65 dB 95 dB 105 dB Puretone Threshold Average Right Ear 56.25 dB Left Ear 72.5 dB Speech Recognition Right Ear 84% Left Ear 78% Also of record are private audiological examination reports dated in October 2003 and September 2007. However, these examination reports display their results graphically rather than numerically and are thus inadequate for rating purposes pursuant to 38 C.F.R. § 4.85. In the present case, the evidence does not show an exceptional level of impaired hearing in either April 2004, August 2007, or November 2008 such that 38 C.F.R. § 4.86 is not applicable to the Veteran's claim. Applying the results from the April 2004 VA audiological examination to Tables VI yields a Roman numeral value of II for the right ear and a Roman numeral value of II for the left ear. See 38 C.F.R. §§ 4.85, 4.86. Applying these values to Table VII, the Board finds that the Veteran's hearing loss was correctly evaluated as zero percent disabling in the August 2004 rating decision. Id. Applying the results from the August 2007 VA audiological examination to Tables VI yields a Roman numeral value of III for the right ear and a Roman numeral value of III for the left ear. See 38 C.F.R. §§ 4.85, 4.86. Applying these values to Table VII, the Board finds that the Veteran's hearing loss, while worse than it was in April 2004, is still zero percent disabling. Id. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a compensable initial disability rating for bilateral hearing loss. 38 C.F.R. § 4.3. Applying the results from the November 2008 VA audiological examination to Tables VI yields a Roman numeral value of II for the right ear and a Roman numeral value of IV for the left ear. See 38 C.F.R. §§ 4.85, 4.86. Applying these values to Table VII, the Board finds that the Veteran's hearing loss is still zero percent disabling. Id. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a compensable initial disability rating for bilateral hearing loss. 38 C.F.R. § 4.3. VA may consider an extraschedular rating in cases that are exceptional, such that the standards of the rating schedule appear to be inadequate to evaluate a disability. 38 C.F.R. § 3.321(b)(1). Extraschedular ratings under 38 C.F.R. § 3.321(b)(1) are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. In determining whether an extraschedular rating is necessary, VA must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). The Board does not have the authority to assign, in the first instance, higher ratings on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). When an extraschedular rating may be warranted, the Board must refer the case to designated VA officials. Bagwell v. Brown, 9 Vet. App. 377 (1996). The Veteran's hearing loss is manifested by difficulty hearing speech. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Hence, the rating criteria contemplate the Veteran's symptomatology. Referral for consideration of an extraschedular rating is therefore not warranted. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits, and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2007); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-rating claim, VA must, at a minimum, notify a claimant that, (1) to substantiate an increased-rating claim, the evidence must demonstrate "a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life" and (2) that if an increase in the disability is found, the rating will be assigned by applying the relevant Diagnostic Codes (DC) 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." The notice must also provide examples of the types of medical and lay evidence that may be obtained or submitted. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection 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 is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. Nevertheless, the record reflects that the Veteran was provided a meaningful opportunity to participate effectively in the processing of his claim such that the notice error did not affect the essential fairness of the adjudication now on appeal. The Veteran was notified that his claim was awarded with an effective date of February 4, 2004, the date of his claim, and a non-compensable rating was assigned. He was provided notice how to appeal that decision, and he did so. He was provided a statement of the case that advised him of the applicable law and criteria required for a higher rating and he demonstrated his actual knowledge of what was required to substantiate a higher rating in his argument included on his Substantive Appeal. Vazquez-Flores, 22 Vet. App. at 37. Moreover, complete notice was sent in May 2008 and the claim was readjudicated in an August 2008 supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran audiological examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the Veteran the opportunity to give testimony before the Board although he declined to do so. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this regard, the April 2004 VA examiner specifically noted the Veteran's complaint that his greatest difficulty was hearing while on the telephone and in crowds. While the April 2004 VA examiner did not specifically address the functional effects caused by the Veteran's bilateral hearing loss disability, the Board finds that no prejudice results to the Veteran and, as such, the Board may proceed with a decision. In this regard, the Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted that, "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra[-]schedular rating is warranted. The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Id. While the April 2004, August 2007, and November 2008 VA examiners failed to address the functional effect of the Veteran's hearing loss disability, the Board notes that other evidence of record, to specifically include the April 2004 VA examination report adequately addresses this issue. Therefore, while the April 2004, August 2007, and November 2008 VA examinations are defective under Martinak, the Board finds that no prejudice results to the Veteran in that the functional effects of his hearing loss disability are adequately addressed by the remainder of the record and are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. ORDER The appeal concerning the issues of entitlement to service connection for arthritis bilateral hands, low back disorder with arthritis, peripheral neuropathy lower extremity, bilateral knee condition secondary to low back problem, and arthritis bilateral rib cage is dismissed. An initial compensable disability rating for bilateral hearing loss is denied. REMAND The Veteran has alleged that he has a bilateral lung disorder as a result of inservice asbestos exposure. As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In a July 2008 statement the Veteran indicated that he was on several World War II vintage vessels during his tenure in the Marine Corps. The Veteran indicated in a June 2009 statement that he worked in transportation maintenance as well as driving. The Veteran contended that his exposure to asbestos occurred in vehicle maintenance shops as well as older United States Navy ships. Specifically, the Veteran indicated that when first assigned to the 3rd Engineer Battalion in Okabu, Japan in 1954 he was sent to the motor pool where he worked in the shop changing brake shoes, which were made from asbestos and, according to the Veteran, gave him considerable exposure before becoming a truck driver. However, it is unclear from reviewing the Veteran's service records whether he, in fact, was exposed to asbestos. In this case, the RO found that the Veteran had no inservice asbestos exposure. However, the service personnel records reflect service as a truck driver. The RO did not consider such service in light of the above described provisions from the M21-1, which suggest that asbestos was used in brake linings. Private treatment records show that the Veteran was, most likely, exposed to asbestos at some point. However, it is unclear whether the Veteran has an asbestos related disease. A December 1987 statement from Dr. G.K.F. shows that X-rays of the Veteran's chest show asbestos exposure, however, there was no evidence of an asbestos related disease. These X-rays were, reportedly, performed during the Sheetmetal Workers Local #68 asbestos screening program. A September 1988 statement from Dr. M.S.F. shows a diagnosis of asbestosis. An un-dated report from Dr. G.K.S. shows a preliminary diagnosis of an asbestos-related disease. Finally, a December 1999 statement from Dr. N.J.A. shows asbestos- related pleural changes but also notes that there was no evidence of asbestosis. On remand, the AMC/RO should request that the Veteran provide information on any pre- or post-service exposure to asbestos. The AMC/RO should point out that it appears that the Veteran worked as a sheetmetal worker after his military service which may have led to post-service asbestos exposure. The AMC/RO should also undertake efforts to obtain additional information that may corroborate the Veteran's claimed in- service exposure to asbestos. Finally, the AMC/RO should schedule the Veteran for an examination to determine whether the Veteran has an asbestos-related disease and, if so, whether the Veteran's asbestos-related disease is related to his alleged in-service asbestos exposure or any post-service asbestos exposure. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should request information from the Veteran regarding his post-service employment and whether the Veteran, to his knowledge, was ever exposed to asbestos post- service. The AMC/RO should point out that it appears that the Veteran worked as a sheetmetal worker after his military service which may have led to post-service asbestos exposure. 2. The AMC/RO should consider the Veteran's service personnel records showing an MOS as a truck driver and the Veteran's contention that he worked with brake linings in his job as a truck driver in conjunction with the provisions of the VBA Manual M21-1, Part VI, pertaining to asbestos exposure, and a determination should be made as to whether it is as likely as not such service caused asbestos exposure. If further investigation is necessary to make such a determination the AMC/RO should prepare a letter asking the United States Army and Joint Services Records Research Center (JSRRC) to provide any information that might corroborate the Veteran's claimed in- service asbestos exposure from working on brake linings. Copies of the Veteran's available service treatment records and service personnel records, and his contentions regarding exposure to asbestos should be forwarded to the JSRRC. If indicated by the JSRRC, the AMC/RO should contact the United States Marine Corps and/or the National Archives and request copies of the Veteran's unit records to help answer these questions. 3. After completion of the foregoing, the AMC/RO should arrange for the Veteran to be afforded a VA examination to determine whether he has an asbestos-related disease. The AMC/RO must specify for the examiner whether the evidence reflects that the Veteran was exposed to asbestos in service and any potential asbestos exposure after service. The examination report should reflect review of pertinent material in the claims folder. If a diagnosis of an asbestos-related disease is made, the examiner should specify whether the Veteran has an asbestos-related disease and, if so, whether it is at least as likely as not that the Veteran's asbestos-related disease is related to his alleged in-service asbestos exposure or any post-service exposure. The examination report should include the complete rationale for all opinions expressed. All necessary special studies or tests should be accomplished. The entire claims folder and a copy of this REMAND must be made available to the examiner prior to the examination. 4. The AMC/RO should then review the record and ensure that all the above actions are completed. When the AMC/RO is satisfied that the record is complete the claim should be readjudicated by the AMC/RO. If the claim is still denied the AMC/RO must furnish the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters 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. 2008). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs