Citation Nr: 1007492	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  08-16 966	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to a compensable evaluation for bilateral 
hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

P. Olson, Counsel


INTRODUCTION

The Veteran had active military service from May 1966 to May 
1970.

This matter comes before the Board of Veterans' Appeals 
(Board or BVA) on appeal from rating decisions dated in 
January 2008 and September 2008 of the Department of Veterans 
Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

The issue of entitlement to service connection for 
hypertension 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.


FINDING OF FACT

The Veteran's right ear is manifested by Level I hearing and 
his left ear is manifested by Level II hearing.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for 
bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, 4.87, 
Diagnostic Code 6100 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matter

The Board has thoroughly reviewed all the evidence in the 
Veteran's claims folder.  Although the Board has an 
obligation to provide reasons and bases supporting this 
decision, there is no need to discuss, in detail, all of the 
evidence submitted by the Veteran or on his behalf.  See 
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) 
(the Board must review the entire record, but does not have 
to discuss each piece of evidence).  The analysis below 
focuses on the most salient and relevant evidence and on what 
this evidence shows, or fails to show, on the claim.  The 
Veteran must not assume that the Board has overlooked pieces 
of evidence that are not explicitly discussed herein.  See 
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law 
requires only that the Board address its reasons for 
rejecting evidence favorable to the veteran).  
	
Veterans Claims Assistance Act of 2000

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a) (2009).  

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); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA 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; and (3) that the claimant is expected to provide.  

With respect to service connection claims, the U.S. Court of 
Appeals for Veterans Claims held that, upon receipt of an 
application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

With respect increased rating claims, In Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008), the United States Court of 
Appeals for Veterans Claims held that, pursuant to 38 U.S.C. 
§ 5103(a) (2008) (currently at 38 U.S.C. § 5103(a)(1)), a 
VCAA notice for an increased rating claim must include the 
following information:  (1) the VA must notify the Veteran 
that in order to substantiate a claim, he or she must provide 
(or ask the VA to obtain) medical or lay evidence 
demonstrating that his or her disability has worsened or 
increased in severity and the effect the worsening has had on 
his or her employment and daily life; (2) if the Veteran's 
current diagnostic code "contains criteria necessary for 
entitlement to a higher disability rating that would not be 
satisfied" by providing the evidence described above-the 
example provided was where a "specific measurement or test 
result" would be required-then the VA must give "at least 
general notice" of that requirement; (3) the VA must tell 
the Veteran that if he or she is assigned a higher rating, 
that rating will be determined by applying relevant 
diagnostic codes, which generally provide for disability 
ratings between 0-100%, "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"; and (4) the notice must also 
provide examples of the types of medical and lay evidence-
such as job application rejections-that the Veteran may 
submit (or ask the VA to obtain) "that are relevant to 
establishing [her or] his entitlement to increased 
compensation."

Recently, the United States Court of Appeals for the Federal 
Circuit issued a decision on appeal that vacated and remanded 
the decision of the Veterans Claims Court in Vazquez-Flores.  
See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 
Sept. 4, 2009).  In view of some potentially qualifying 
language included in the Federal Circuit's decision in 
vacating the CAVC's decision ("insofar as"), it appears 
that only the generic first, third, and fourth elements 
[contained in the CAVC's decision] are in fact required under 
the Federal Circuit's decision.

VA has met all statutory and regulatory notice and duty to 
assist provisions.  Letters dated in October 2007, May 2008, 
and August 2008 fully satisfied the duty to notify 
provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); 
Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473.  
Together, the letters informed the appellant of what evidence 
was required to substantiate the claims and of the 
appellant's and VA's respective duties for obtaining 
evidence, as well as how VA determines disability ratings and 
effective dates. 

In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) 
(Pelegrini II), the United States Court of Appeals for 
Veterans Claims (Court) held that VA must request that the 
claimant provide any evidence in his possession that pertains 
to the claim based upon 38 C.F.R. § 3.159(b).  The 
requirement of requesting that the claimant provide any 
evidence in his possession that pertains to the claim was 
eliminated by the Secretary during the course of this 
appeal.  See 73 Fed. Reg. 23353 (final rule revising 
38 C.F.R. § 3.159(b) to rescind fourth element notice as 
required under Pelegrini II, effective May 30, 2008).  Thus, 
any error related to this element is harmless.  However, 
although this notice is no longer required, the Board notes 
that the Veteran was aware that it was ultimately his 
responsibility to give VA any evidence pertaining to the 
claim.  The October 2007 and August 2009 letters told him to 
provide any relevant evidence in his possession.  See 
Pelegrini, 18 Vet. App. at 120.  
 
Ideally, the notice required by 38 U.S.C.A. § 5103(a) 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).  Although 
that was not done in this case, the Board finds that this 
error was not prejudicial to the appellant because the 
actions taken by VA after providing the notice have 
essentially cured the error in the timing of notice.  Not 
only has the appellant been afforded a meaningful opportunity 
to participate effectively in the processing of his claim and 
given ample time to respond, but the AOJ also readjudicated 
the case after the notice was provided.  See Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was 
not provided prior to the AOJ's initial adjudication, this 
timing problem can be cured by the Board remanding for the 
issuance of a VCAA notice followed by readjudication of the 
claim by the AOJ).  For these reasons, it is not prejudicial 
to the appellant for the Board to proceed to finally decide 
this appeal as the timing error did not affect the essential 
fairness of the adjudication.  

The Veteran's service treatment records and VA medical 
treatment records have been obtained, to the extent 
available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The 
Veteran has identified no private medical records that he 
wished for VA to obtain on his behalf.  There is no 
indication in the record that any additional evidence, 
relevant to the issues decided herein, is available and not 
part of the claims file.  

The duty to assist also includes providing a medical 
examination or obtaining a medical opinion when such is 
necessary to make a decision on the claim, as defined by law.  
The Veteran was accorded a VA examination in November 2007. 
38 C.F.R. § 3.159(c)(4).  The November 2007 VA examiner 
addressed the severity of the Veteran's current hearing loss 
in conjunction with a review of the claims file and physical 
examination of and interview with the Veteran.  There is no 
objective evidence indicating that there has been a material 
change in the severity of the Veteran's service-connected 
disorders since he was last examined.  38 C.F.R. § 3.327(a).  

The duty to assist does not require that a claim be remanded 
solely because of the passage of time since an otherwise 
adequate VA examination was conducted.  VAOPGCPREC 11-95.  
The November 2007 VA examination report is thorough.  The 
examination in this case is adequate upon which to base a 
decision. 

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably affects 
the outcome of this case, the Board finds that any such 
failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
2006).

Increased Rating

Disability ratings are determined by applying the criteria 
set forth in the VA's Schedule for Rating Disabilities, which 
is based on the average impairment of earning capacity.  
Individual disabilities are assigned separate diagnostic 
codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two 
evaluations are potentially applicable, the higher evaluation 
will be assigned if the disability picture more nearly 
approximates the criteria required for that rating; 
otherwise, the lower rating will be assigned.  38 C.F.R. § 
4.7.

When, as here, the Veteran is requesting a higher rating for 
an already established service-connected disability, the 
present disability level is the primary concern and past 
medical reports do not take precedence over current findings.  
See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, 
"staged" ratings are appropriate for an increased rating 
claim when the factual findings show distinct time periods 
where the service-connected disability exhibits symptoms that 
would warrant different ratings.  Hart v. Mansfield, 21 Vet. 
App. 505 (2007)

The Veteran's service-connected bilateral hearing loss has 
been evaluated as noncompensably disabling pursuant to 38 
C.F.R. § 4.87, Diagnostic Codes 6100 for hearing impairment.

Hearing loss ratings range from noncompensable to 100 percent 
based on organic impairment of hearing acuity, as measured by 
controlled speech discrimination tests in conjunction with 
average hearing thresholds determined by pure tone 
audiometric testing at frequencies of 1000, 2000, 3000 and 
4000 cycles per second.  "Pure tone threshold average" is 
the sum of the pure tone thresholds at 1000, 2000, 3000 and 
4000 Hertz divided by four.  This average is used in all 
cases (including those in §4.86) to determine the Roman 
numeral designation for hearing impairment from Table VI or 
VIa.  38 C.F.R. § 4.85, Diagnostic Code 6100.

The rating schedule establishes eleven auditory acuity 
levels, designated from Level I for essentially normal 
hearing acuity, through Level XI for profound deafness.  38 
C.F.R. § 4.85.  The horizontal rows 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 vertical columns in Table VI represent nine 
categories of decibel loss based on the pure tone audiometry 
test.  The Roman numeral designation is located at the point 
where the percentage of speech discrimination and pure tone 
threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.87.

On the authorized audiological evaluation in November 2007, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
10
20
30
80
LEFT
15
10
35
65
85

The average of the pure tones between 1000-4000 Hz was 35 
decibels for the right ear and 48.75 decibels in the left 
ear.  Speech audiometry revealed speech recognition ability 
of 94 percent in the right ear and of 88 percent in the left 
ear.

Using Table VI in 38 C.F.R. § 4.85, the Veteran received 
numeric designations of I for the right ear and II for the 
left ear.  Level I hearing acuity in the better ear and Level 
II hearing acuity in the poorer ear equates to a 
noncompensable evaluation. 38 C.F.R. § 4.85, Table VII.

The Board notes that it also considered the alternative 
rating scheme for exceptional patterns of hearing impairment 
and found it inapplicable here. When the pure tone threshold 
at each of the four specified frequencies (1,000, 2,000, 
3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or 
Table VIa is to be used, whichever results in the higher 
numeral.  38 C.F.R. § 4.86(a) (2009).  Additionally, when the 
pure tone threshold is 30 decibels or less at 1,000 Hertz, 
and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa 
is to be used, whichever results in the higher numeral.  
Thereafter, that numeral will be elevated to the next higher 
numeral. 38 C.F.R. § 4.86(b) (2009).  The record demonstrates 
that the Veteran does not exhibit exceptional patterns of 
hearing impairment and, therefore, evaluation pursuant to 38 
C.F.R. § 4.86 is not authorized.

The Board has considered the doctrine of reasonable doubt; 
however, hearing evaluations are performed by mechanically 
applying the rating criteria to certified test results.  
Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  As such 
there is no basis to establish a higher rating than the 
assigned rating.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), 
the United States Court of Appeals for Veterans Claims 
(Court), noted that VA had revised its hearing examination 
worksheets to include the effect of the Veteran's hearing 
loss disability on occupational functioning and daily 
activities.  See Revised Disability Examination Worksheets, 
Fast Letter 07-10 (Dept of Veterans Affairs Veterans Apr. 24, 
2007); see also 38 C.F.R. § 4.10 (2007).  The Court also 
noted, however, that even if an audiologist's description of 
the functional effects of the Veteran's hearing disability 
was somehow defective, the Veteran bears the burden of 
demonstrating any prejudice caused by a deficiency in the 
examination.

In this case, the Veteran has not reported to VA that there 
was any prejudice caused by a deficiency in the examination.  
The Veteran, as a lay person, is nevertheless competent to 
submit evidence of how the hearing loss affects his everyday 
life.  See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994) 
(finding that lay testimony is competent when it regards 
features or symptoms of injury or illness).  The November 
2007 VA examiner noted that the Veteran reported that he must 
often ask others to repeat in order to understand 
conversations.  Thus, the examination report did include 
information concerning how the Veteran's hearing loss affects 
his daily functioning.  

In sum, the evidence does not support a compensable rating at 
any time covered by this appeal.  Accordingly, the Veteran's 
claim for a compensable rating for bilateral hearing loss 
must be denied.

The Board is aware that an extraschedular rating is a 
component of an increased rating claim.  Barringer v. Peake, 
22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 
337, 338-39 (1996).  The threshold factor for extraschedular 
consideration is a finding on the part of the RO or the Board 
that the evidence presents such an exceptional disability 
picture that the available schedular evaluations for the 
service-connected disability at issue are inadequate.  Thun 
v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 
Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1).  If so, 
factors for consideration in determining whether referral for 
an extraschedular rating is warranted include marked 
interference with employment or frequent periods of 
hospitalization that indicate that application of the regular 
schedular standards would be impracticable.  Thun, citing 38 
C.F.R. § 3.321(b)(1) (2008).  In the present case, the Board 
finds no evidence that the Veteran's service-connected 
bilateral hearing loss presents such an unusual or 
exceptional disability picture at any time so as to require 
consideration of an extra-schedular evaluation pursuant to 
the provisions of 38 C.F.R. § 3.321(b)(1).  The disability 
does not result in symptoms not contemplated by the criteria 
in the rating schedule.  Hence the Board is not required to 
remand this matter to the RO for the procedural actions 
outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an 
extraschedular evaluation. 


ORDER

Entitlement to a compensable evaluation for bilateral hearing 
loss is denied


REMAND

The Veteran has not been afforded a VA examination, with an 
opinion as to the etiology of his hypertension. 
 
In determining whether the duty to assist requires that a VA 
medical examination be provided or medical opinion obtained 
with respect to a Veteran's claim for benefits, there are 
four factors for consideration.  These four factors are:  
(1) whether there is competent evidence of a current 
disability or persistent or recurrent symptoms of a 
disability; (2) whether there is evidence establishing that 
an event, injury, or disease occurred in service, or evidence 
establishing certain diseases manifesting during an 
applicable presumption period; (3) whether there is an 
indication that the disability or symptoms may be associated 
with the Veteran's service or with another service-connected 
disability; and (4) whether there otherwise is sufficient 
competent medical evidence of record to make a decision on 
the claim.  38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals 
for Veterans Claims has stated that this element establishes 
a low threshold and requires only that the evidence 
"indicates" that there "may" be a nexus between the 
current disability or symptoms and the Veteran's service.  
The types of evidence that "indicate" that a current 
disability "may be associated" with military service 
include, but are not limited to, medical evidence that 
suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or 
other symptoms capable of lay observation.  McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  

VA regulations provide that hypertension or isolated systolic 
hypertension must be confirmed by readings taken two or more 
times on at least three different days and that the term 
hypertension means that the diastolic blood pressure is 
predominantly 90mm. or greater, and isolated systolic 
hypertension means that the systolic blood pressure is 
predominantly 160mm. or greater with a diastolic blood 
pressure of less than 90mm.  See 38 C.F.R. § 4.104, 
Diagnostic Code 7101, Note (1).  The service treatment 
records are absent complaints, findings or diagnoses of 
hypertension.  However, there is an elevated blood pressure 
reading, 130/90, on the Report of Medical Examination 
conducted in May 1970 at the Veteran's separation from 
service.  

In order to afford the Veteran every consideration with 
respect to the present appeal and to ensure due process, it 
is the Board's opinion that further development of the case 
is necessary.  In this regard, a medical opinion in 
conjunction with the review of the entire record and 
examination of the Veteran is warranted to indicate whether 
or not the Veteran's current hypertension is related to his 
military service.  38 C.F.R. § 3.159(c)(4). 

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded the 
appropriate VA examination to determine 
the etiology of his current hypertension.  
The claims file must be made available to 
and reviewed by the examiner in 
conjunction with the examination, and the 
examination report should reflect that 
such a review was made.  All pertinent 
symptomatology and findings should be 
reported in detail.  Any indicated 
diagnostic tests and studies should be 
accomplished.  The examiner should 
provide an opinion as to whether it is at 
least as likely as not that the Veteran's 
current hypertension is related to any 
symptoms documented during the Veteran's 
active duty service.  

It would be helpful if the examiner would 
use the following language, as may be 
appropriate:  "more likely than not" 
(meaning likelihood greater than 50%), 
"at least as likely as not" (meaning 
likelihood of at least 50%), or "less 
likely than not" or "unlikely" 
(meaning that there is a less than 50% 
likelihood).

The term "at least as likely as not" 
does not mean "within the realm of 
medical possibility."  Rather, it means 
that the weight of medical evidence both 
for and against a conclusion is so evenly 
divided that it is as medically sound to 
find in favor of that conclusion as it is 
to find against it.  The examiner should 
provide a complete rationale for any 
opinion provided.

2.  The case should be reviewed on the 
basis of the additional evidence.  If the 
benefit sought is not granted in full, 
the Veteran should be furnished a 
Supplemental Statement of the Case and be 
afforded a reasonable opportunity to 
respond before the record is returned to 
the Board for further review.  

No action is required of the appellant until further notice.  
However, the Board takes this opportunity to advise the 
appellant that the conduct of the efforts as directed in this 
remand, as well as any other development deemed necessary, is 
needed for a comprehensive and correct adjudication of his 
claim.  His cooperation in VA's efforts to develop his claim, 
including reporting for any scheduled VA examination, is both 
critical and appreciated.  The appellant is also advised that 
failure to report for any scheduled examination may result in 
the denial of a claim.  38 C.F.R. § 3.655.  

The appellant has the right to submit additional evidence and 
argument on the matter or 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. 2009).



______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs