Citation Nr: 1013003 Decision Date: 04/06/10 Archive Date: 04/14/10 DOCKET NO. 07-00 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange Exposure. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus. 3. Entitlement to an evaluation in excess of 20 percent for bilateral sensorineural hearing loss. 4. Entitlement to an evaluation in excess of 10 percent for peripheral vestibular lesion and labyrinthitis (vestibular disorder). 5. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). 6. Entitlement to initial evaluation in excess of 10 percent for tinnitus. 7. Entitlement to an earlier effective date than August 22, 2005 for grant of service connection for residuals of a back fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1969 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO). In pertinent part of the August 2006 decision, the RO denied increased evaluations for hearing loss and a vestibular disorder, as well as service connection for diabetes mellitus, sexual dysfunction, and entitlement to TDIU. The Veteran perfected his appeals to each of the issues. These issues were previously addressed by the Board in its October 2008 decision and remand. Issues currently on appeal were returned to the Agency of Original Jurisdiction (AOJ) to obtain copies of the records from the Social Security Administration. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). In the October 2008 Board decision, the Board awarded service connection for residuals of a back injury and for a separation assigned rating for tinnitus. These awards were implemented in the August 2009 rating decision, wherein the RO assigned a 10 percent rating for residuals of back fracture, effective from August 22, 2005 and assigned a separate 10 percent rating for tinnitus, effective from January 11, 2007. In August 2009, the Veteran filed a notice of disagreement, arguing for: (1) an effective date prior to August 22, 2005 for grant of service connection for residuals of back fracture; and (2) a higher initial rating for tinnitus. Since the Veteran has not been provided with a Statement of the Case for these issues, they are both addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no evidence that the Veteran served in Vietnam during the Vietnam era; therefore, the presumption that he was exposed to Agent Orange or other herbicides while there is inapplicable. Diabetes mellitus was not shown until several decades after service, and there is no competent medical evidence linking diabetes mellitus to service. 2. Erectile dysfunction was not shown in service, or until several decades after service, and there is no competent medical evidence linking erectile dysfunction to service. 3. The Veteran's bilateral sensorineural hearing loss has not been manifested by findings more severe than a pure-tone average of 71 decibels with 76 percent speech discrimination (Level VI) in the right ear, and a pure-tone average of 60 decibels with 72 percent speech discrimination (Level V) in the left ear. 4. The Veteran's vestibular disorder is manifested by occasional episodes of dizziness approximately three to four times a year, and it is appropriately assigned a separate compensable rating. 5. The Veteran is service connected for posttraumatic stress disorder, rated as 30 percent disabling, bilateral sensorineural hearing loss, rated as 20 percent disabling, peripheral vestibular disorder, rated as 10 percent disabling, residuals of back fracture, rated as 10 percent disabling, and tinnitus, rated as 10 percent disabling. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2009). 2. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2009). 3. The criteria for an evaluation in excess of 20 percent have not been met for the Veteran's bilateral sensorineural bilateral hearing loss. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100 (2009) 4. The criteria for an evaluation in excess of 10 percent have not been met for the Veteran's peripheral vestibular lesion and labyrinthitis. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.87, Diagnostic Code 6204, 6205 (2009) 5. The criteria for entitlement to a total disability rating for individual unemployability due to service- connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, prior to the August 2006 RO decision in the matter, VA sent a letter to the Veteran in March 2006 that addressed all the notice elements concerning his claims. The letter informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. VA has also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the VCAA duty to notify was fully satisfied as to the Veteran's claims. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. VA provided the Veteran with an audiological examination in August 2005; ears, nose and throat (ENT) examination in October 2005; and an audiological and ENT examination in February 2007. In each of these examination reports, the examiner addressed the severity of the Veteran's bilateral sensorineural hearing loss and vestibular disorder. The second February 2007 examination report also contain notation on the functional affect of the Veteran's bilateral sensorineural hearing loss. See Martinak v. Nicholson, 21 Vet. App. 447, 454-55. The Veteran was not afforded a medical examination for his diabetes mellitus and erectile dysfunction claims; the Board finds, however, that such an examination is not necessary to render a decision under the circumstances of this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i) (2009). There is no evidence showing that the Veteran was exposed to Agent Orange during service. In regards to the Veteran's assertions that his diabetes mellitus is based on secondary exposure to working on aircrafts that flew into Vietnam, there are no current medical studies that show harmful health effects for any such secondary or remote herbicide contact that may have occurred. The Veteran also has not submitted any medical evidence that would indicate a nexus based on secondary exposure. Additionally, there is no evidence that suggests that the Veteran's diabetes mellitus and erectile dysfunction are otherwise related to his service. A review of the Veteran's service treatment records was negative for any complaint or findings indicative of diabetes mellitus, such as positive findings for sugar and albumin in his urinalysis. Additionally, the Veteran was not diagnosed with diabetes mellitus and erectile dysfunction until 20 years after his service. The Board finds that any medical opinion linking diabetes mellitus and erectile dysfunction to service would be speculative at best. An examination is not necessary to resolve this claim. See id. With respect to the Veteran's TDIU claim, the evidence of record also does not show that a VA examination would assist in substantiating the Veteran's claim. The record shows that the Veteran does not meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a). Additionally, there is no medical evidence that shows the Veteran's service-connected disabilities should be referred for extraschedular consideration. The evidence does not show that the Veteran's service-connected disabilities take him outside the normal considerations of the rating schedule. As there is no reasonable possibility that obtaining a VA examination would aid in substantiating the Veteran's claim, VA has no further duty to assist in this regard. 38 U.S.C.A. § 5103A(a)(2). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When a veteran seeks to establish service connection for a disability, he does not need to rely on medical records alone. Triplette v. Principi, 4 Vet. App. 45, 49 (1993). The use of lay statements are considered to be competent evidence when describing the symptoms of a disease or disability or an injury. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). It is clear, however, that the resolution of issues that involve medical knowledge, such as diagnosis of disability and determination of medical etiology, require professional evidence. Id., See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 14341434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Diabetes Mellitus The Veteran is claiming entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f). 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). In its Haas v. Peake decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that VA reasonably interpreted 38 U.S.C. § 1116(a)(1)(A) and 38 C.F.R. § 3.307(a)(6)(iii) as requiring the physical presence of a veteran within the land borders of Vietnam (including inland waterways) during service. Id., 525 F.3d 1168 (Fed. Cir. 2008). Pursuant to under 38 C.F.R. § 3.309(e), if a veteran was exposed to a herbicide agent during active military, naval, or air service, then certain diseases, including diabetes mellitus, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Type II diabetes mellitus or adult-onset diabetes must become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). In the present case, the Veteran has been awarded the Vietnam Service Medal (VSM), as well as the Republic of Vietnam Campaign Medal (RVCM). The Vietnam Service Medal was awarded to veterans who served between July 1965, and March 1973 in Vietnam, Thailand, Laos, or Cambodia in direct support of operations in Vietnam. See U.S. Dep't of Defense Manual of Military Decorations and Awards, Appendix D at D-20, July 1990. As noted by the Federal Circuit in the Haas decision, the receipt of the VSM alone does not establish service in Vietnam. Id., 525 F.3d at 1168. The RVCM is awarded to those personnel who (1) served in the Republic of Vietnam for six months during a specified period, or (2) served outside the geographical limits of the Republic of Vietnam but contributed direct combat support to the Republic of Vietnam and Armed Forces for 6 months, or (3) served in the Republic of Vietnam or outside its geographical limits for less than six months but were wounded, captured or killed. See U.S. Dep't of Defense Manual of Military Decorations and Awards, Appendix D at D- 20, July 1990. Based upon the above definitions, the Veteran's receipt of the VSM and RVCM does not provide proof of physical presence inside the Republic of Vietnam. In fact, the Veteran is not alleging that he was exposed to herbicides as a result of physical presence in Vietnam. Rather, in a September 2006 communication he contended that he was exposed to Agent Orange while serving in Thailand, where he said he travelled on aircrafts that flew into Vietnam and carried passengers between Vietnam and Thailand. The record does not show that the Veteran had any actual service in the Republic of Vietnam. Thus, there is no presumption of in-service exposure to herbicides. 38 C.F.R. § 3.309(e). The Board acknowledges the Veteran's assertions that his exposure to Agent Orange was secondary to working on aircrafts that flew into Vietnam. The Veteran contends that by sitting in these aircrafts that were exposed to the soil in Vietnam, he was "forced to stand on, sit on and breathe the soil of Vietnam by the routine flights" he took on these aircrafts. The Board finds that being within close proximity to "soils of Vietnam" does not comport to have a physical presence in Vietnam under VA laws and regulations. Entitlement to presumptive service connection for diabetes mellitus requires actual physical presence in Vietnam. See 38 U.S.C. § 1116(a)(1)(A) and 38 C.F.R. § 3.307(a)(6)(iii), Haas, supra. In regard to the Veteran's claim that VA has already conceded Agent Orange exposure by placing the Veteran in the Agent Orange Registry and providing him an Agent Orange Examination in September 1989, this does not in fact create a concession for presumptive service connection for diabetes mellitus based on herbicide exposure, to include Agent Orange, under 38 C.F.R. § 3.309(e). Rather, it only acknowledges that the Veteran may have been exposed to Agent Orange in service, but it does not show that he was actually exposed to Agent Orange for entitlement to presumptive service connection under VA law and regulations. Moreover, the Veteran's urinalysis at the time of the 1989 Agent Orange Examination was negative. The Board has considered the Veteran's assertions that his diabetes mellitus is based on secondary exposure to Agent Orange while he worked on aircrafts that flew into Vietnam. There are no current medical studies of record that show harmful health effects for any such secondary or remote herbicide contact that may have occurred. The Veteran also has not submitted any medical evidence that would indicate a nexus based on secondary exposure. Again, since there is no presumption of herbicide exposure on the facts of this case, the list of presumptive conditions under 38 C.F.R. § 3.309(e) is not applicable here. However, service connection for diabetes mellitus may still be established on the basis of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records do not contain any complaints or treatment referable to diabetes mellitus. In a December 1972 report of medical examination, prior to the Veteran's separation from his first period of service, it is noted that the Veteran's urinalysis was negative for albumin and sugar at that time. The first post-service diagnosis of diabetes mellitus is seen in a May 2005 VA treatment records, and subsequent VA treatment records continue to show treatment for diabetes mellitus. None of these records suggests a link between the disorder and service. As mentioned, the Veteran claims service connection for diabetes mellitus. After a review of the record, the Board finds that the competent medical evidence of record does not support an award of service connection. There is no medical evidence showing that the Veteran's diabetes mellitus existed during service. See 38 C.F.R. § 3.303. In addition, the first diagnosis of diabetes mellitus in May 2005, this is well beyond the one year presumptive period for diabetes mellitus. See 38 C.F.R. §§ 3.307, 3.309. Further, this evidentiary gap between the Veteran's active service and the earliest objective medical evidence of diabetes mellitus goes against the Veteran's claim on a direct basis. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). As the Veteran's diabetes mellitus was not shown during service or for the first year thereafter, service connection can only be granted if there is some medical evidence linking the current condition to service. Here, there is no such medical evidence. See 38 C.F.R. § 3.303(d). Other than the Veteran's lay assertions that his diabetes mellitus is related to inservice Agent Orange exposure, there is no competent evidence that links the Veteran's current disorder to his service. Although the Veteran is competent to attest to facts surrounding his claim, as a lay person, he is not competent to offer opinions that require medical knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, to the extent, his statement contains a medical etiology of his current disabilities; this is simply not competent or persuasive evidence. Moreover, the record lacks medical evidence establishing a possible relationship between the Veteran's diabetes mellitus and his period of active service. The evidence of record does not show diabetes mellitus during service or for years thereafter, nor does it show that the Veteran's current diabetes mellitus is related to service. The evidence of record is not in relative equipoise. Accordingly, as the preponderance of the evidence is against the claim for entitlement to service connection for diabetes mellitus, the appeal must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Erectile Dysfunction The Veteran claims entitlement to service connection to erectile dysfunction. The Veteran has specifically asserted that his erectile dysfunction is secondary to his diabetes mellitus. As shown above, however, service connection for diabetes mellitus has been denied, precluding this avenue of entitlement for the Veteran. The evidence of record does not support an award of service connection for erectile dysfunction on a direct basis. The Veteran's service treatment records do not show any complaints, treatments or diagnosis for erectile dysfunction in service. The first evidence of erectile dysfunction is not shown until an August 2003 VA treatment record, which comes several decades after the first year following the Veteran's separation from service. See 38 C.F.R. §§ 3.307, 3.309. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since service, can be considered as evidence against the claim. Maxson, 230 F. 3d at 1333. Additionally, there is no indication of a medical nexus between the currently-diagnosed erectile dysfunction and active duty. Therefore, the Board finds no basis to grant service connection on a direct basis. See 38 C.F.R. § 3.303. Accordingly, service connection for erectile dysfunction is denied. The preponderance of the evidence is against the claim for service connection. Since there is no approximate balance of positive and negative evidence, the rule affording the veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b). See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. 3. Increased Ratings Disability evaluations are determined by the application of the facts presented to a schedule of ratings that is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When evaluating the severity of a disability, VA will consider the entire history of the disability including records of social impairment. See 38 C.F.R. § 4.126(a); Peyton v. Derwinski, 1 Vet. App. 282 (1991). In cases involving the assignment of an initial rating following the award of service connection, VA must address all evidence that was of record from the date of the filing of the claim on which service connection was granted (or from other applicable effective date). Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. See id.; Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as "staged" ratings. It is not expected that all cases will show all the findings specified; however, in all instances it is expected that there will be sufficient findings as to identify the disease and the disability there from, and to coordinate the rating with the identified impairment of function. 38 C.F.R. § 4.21. Where there is a question as to which of two rating evaluations shall be applied, 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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Any reasonable doubt will be resolved in favor of granting the veteran's claim. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. Bilateral sensorineural hearing loss The Veteran claims entitlement to a compensable disability rating for his bilateral hearing loss. The appropriate evaluation for hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85, 4.86. The Rating Schedule provides a table for rating purpose (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist), including pure-tone threshold average and speech discrimination (Maryland CNC test). 38 C.F.R. § 4.85 (b). In circumstances where an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing impairment as defined under 38 C.F.R. § 4.86, then Table VIa will be used to determine the Roman numeral designations (I through XI) for hearing impairment based only on pure-tone threshold average. 38 C.F.R. § 4.85(c). One exceptional pattern of hearing impairment occurs when the pure-tone thresholds in each of the four frequencies (1K to 4K Hertz) are 55 decibels or greater. Another occurs where the pure-tone threshold at 1K Hertz is 30 decibels or less, and the threshold at 2K Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). The hearing impairment will be assigned a Roman numeral from either Table VI or Table VIa, whichever results in the higher numeral. Id. Once the Veteran's hearing impairment is determined by the numeral designations according to Table VI or VIa, then Table VII is used to determine the rating assigned by combining the Roman numeral designation for hearing impairment of each ear. The percentage evaluation is found on Table VII by intersecting the horizontal row appropriate for the numeric designation for the ear with the better hearing and the vertical column appropriate to the numeric designation level for the ear with the poorer hearing. 38 C.F.R. § 4.85(e). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designation assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In determining the appropriate rating for the Veteran's hearing impairment, however, VA must also consider whether an extra-schedular evaluation under 38 C.F.R. § 3.321(b) should be assigned in the case where the disability affect on the Veteran's occupational function and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 454-55. The Veteran submitted a statement in May 2005 indicating that his hearing ability had progressively worsened. In a July 2005 statement, the Veteran stated that he currently requires hearing aids in both ears. He has also stated that he has problems communicating with others and he becomes frustrated and stressed as a result of his difficulty coping with his disability. The Veteran's hearing impairment was most recently evaluated in February 2007. At the time of the audiological examination, the report reveals pure-tone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, were as follows: 55, 80, 70, 65, and 70 decibels in the right ear; and 35, 70, 65, 55, and 55 decibels in the left ear. Pure-tone threshold averages were 71 in the right ear and 60 in the left ear. The Maryland CNC speech recognition testing revealed speech recognition abilities were 76 percent in the right ear and 72 percent in the left ear. The Veteran was diagnosed with mild to severe bilateral sensorineural hearing loss. In the February 2007 VA ENT examination report, the examiner noted that the Veteran reported the loss of several jobs because of hearing impairment. The Board finds that the Veteran does have an exceptional pattern of hearing impairment. He has puretone thresholds greater than 55 decibels at each of the 1000, 2000, 3000, and 4000 Hz levels in both. See 38 C.F.R. § 4.86. As such, the severity of the Veteran's hearing impairment will be determined under either Table VI or Table VIa, whichever results in the higher numeral values. Applying the 38 C.F.R. § 4.85, Table VI and the 38 C.F.R. § 4.85, Table VIa to the Veteran's hearing loss scores, his right ear receives the highest evaluation under Table VIa with a Level VI (puretone threshold average of 71 decibels), and his left ear receives the higher evaluation under Table VI with a Level V (puretone threshold average of 60 decibels, speech recognition score of 72 percent). Considering 38 C.F.R. § 4.85, Table VII, the Veteran does not meet the criteria for an evaluation in excess of 20 percent, as the evaluation indicated at the intersection of the column for Roman numeral VI for the poorer ear, and the column for Roman numeral V for the better ear. There is no objective evidence that he meets the criteria for the next higher evaluation of 30 percent. Although the Veteran has indicated that his hearing is worse than criteria characterized by the assigned 20 percent evaluation, the rating criteria for hearing loss, as addressed above, requires the mechanical application of rating criteria to objectively-obtained audiometric testing results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The current 20 percent evaluation is reflected by the most recent medical evidence on record, and there is no indication that the findings from the February 2007 VA examination report are inadequate. Therefore, the Board finds that the Veteran's claim for a higher evaluation cannot be granted. The Board has also considered the application of an extra- schedular rating in this case under 38 C.F.R. § 3.321(b)(1). The evidence of record shows that the functional effect of the Veteran's hearing impairment includes difficulty hearing others, and it has led to his heightened frustration with others, which has affected his employment at various jobs. Although Veteran's disability causes him functional impairment, the evidence of records does not show that the bilateral hearing loss has resulted in marked interference with Veteran's earning capacity or employment problems beyond that interference contemplated by the assigned evaluation, or that it has necessitated frequent periods of hospitalization. The Board therefore finds that the impairment resulting from the Veteran's bilateral hearing loss is appropriately compensated by the currently assigned schedular ratings. Referral by the RO to the Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is thus not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Finally, the Board notes that the severity of the Veteran's symptomatology has been relatively constant throughout the period of this appeal; therefore, "staged" ratings are not warranted. 38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505. As discussed above, the medical evidence of record does not indicate that the Veteran's symptomatology has worsened to a level that warrants a rating in excess of 20 percent at any point during this period. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. Peripheral Vestibular Disorder The Veteran seeks a rating in excess of 10 percent for his service-connected vestibular disorder. The Veteran asserts that his disability causes him intermittent episodes of dizziness, which in turn causes him to lose his balance and fall. The Veteran has stated he is no longer eligible for a commercial driver's license because of his disability. The Board notes that the Veteran also receives separate ratings for his bilateral sensorineural hearing loss, rated as 20 percent disabling and for his tinnitus, rated as 10 percent disabling. The Veteran's disability due to vestibular disorder has been assigned a 10 percent rating under a general set of criteria applicable to ear disabilities found at 38 C.F.R. § 4.87, Diagnostic Code 6204. Under the criteria found at Diagnostic Code 6204, a 10 percent rating is warranted where the evidence demonstrates occasional dizziness. A 30 percent rating applies for dizziness and occasional staggering. A note to the diagnostic code states that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable rating must be assigned. The Veteran's vestibular disorder has been stable since service. See October 2005 VA ENT examination report. A review of the record for the period under appeal shows that the Veteran has complained of intermittent vertigo and dizziness no more three to four times a year. See August 2005 VA audiological examination report, February 2007 VA audiological and ENT examination reports. In the February 2007 VA ENT examination report, the examiner noted that the symptomatology manifested by the Veteran's vestibular disorder was not significant and it should only be associated with minimal rating criteria. Other than the Veteran's subjective reports of losing his balance and falling due to episodes of dizziness, there were no objective medical findings of staggering. Given its review of the record, the Board finds that an evaluation in excess of 10 percent for the Veteran's vestibular disorder is not warranted. The symptoms described during the multiple VA examinations are adequately contemplated by the 10 percent evaluation already assigned. The Veteran has reported that he experiences episodes of vertigo and dizziness no more than three to four times a year. Although the Veteran has reported that his intermittent episodes of dizziness cause him to lose his balance and fall, the Board finds that such symptomatology most nearly approximates the criteria for a 10 percent rating associated with occasional dizziness. The evidence does not approximate the findings of dizziness and occasional staggering to merit a higher rating of 30 percent. As such, a disability rating in excess of 10 percent for vestibular disorder is not warranted. See 38 C.F.R. § 4.87, Diagnostic Code 6204. The Board also calls attention to Diagnostic Code 6205, concerning Meniere's syndrome, as an analogous and alternate rating code for consideration here. Under Diagnostic Code 6205, a 30 percent rating is assigned for hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent evaluation is assigned for hearing impairment with vertigo and cerebellar gait occurring one to four times a month, with or without tinnitus. A note to the diagnostic code indicates that Meniere's syndrome may be rated either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. An evaluation for hearing impairment, tinnitus, or vertigo may not be combined with an evaluation under Diagnostic Code 6205. Here, the symptomatology manifested by Veteran's disabilities would only warrant a 30 percent disability rating under Diagnostic Code 6205. The evidence does not show the Veteran has vertigo and cerebellar gait at least once a month to warrant a higher evaluation of 60 percent. The Veteran obtains a higher overall evaluation when each of this disabilities are evaluated separately (a 20 percent disability rating for bilateral sensorineural hearing loss, a 10 percent disability rating for tinnitus, and a 10 percent disability rating for vestibular disorder) compared to a single 30 percent evaluation under Diagnostic Code 6205. The Veteran is appropriately rated with separate ratings under the Rating Schedule. 38 C.F.R. § 4.85, 4.86, 4.87, Diagnostic Codes 6100-6205. The Board has based its decision in this case upon the applicable provisions of the VA's Schedule for Rating Disabilities. The Veteran has submitted no evidence showing that his vestibular disorder markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is no indication that this disability has necessitated frequent periods of hospitalization during the pendency of this appeal. Although the Veteran has submitted evidence that his disability prevents him from obtaining a commercial driver's license, and precludes him from employment as a truck driver, there is no evidence that shows the Veteran is not capable of all other forms of employment. Additionally, it is noted that while the rating schedule for the Veteran's vestibular disability contemplates the possibility of awarding a higher evaluation of 60 percent, the evidence of record only shows that his vestibular disorder symptomatology warrants no more than a 10 percent rating. As such, 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), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Thun v. Peake, 22 Vet. App. 111, 115 (2008). In sum, the claim of entitlement to an evaluation in excess of 10 percent rating must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the Board notes that the severity of the Veteran's symptomatology has been relatively constant throughout the period of this appeal; therefore, "staged" ratings are not warranted. 38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505. As discussed above, the medical evidence of record does not indicate that the Veteran's vestibular disorder symptomatology has worsened to a level that warrants a rating in excess of 10 percent at any point during this period. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. 4. TDIU Claim The Veteran seeks entitlement to a total rating based upon individual unemployability due to service-connected disability. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation because of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service- connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). In determining whether the veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran is service-connected for posttraumatic stress disorder (PTSD), rated as 30 percent disabling, bilateral sensorineural hearing loss, rated as 20 percent disabling, peripheral vestibular disorder, rated as 10 percent disabling, residuals of back fracture, rated as 10 percent disabling, and tinnitus, rated as 10 percent disabling. The Veteran's combined rating is only 60 percent; he does not satisfy the schedular requirements for consideration of a TDIU. 38 C.F.R. §§ 3.340, 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. Accordingly, the Board must considered whether the Veteran's claim for TDIU should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). For a veteran to prevail on a claim for TDIU on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, supra. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. The Veteran's PTSD was most recently evaluated in February 2007 by VA. A review of that VA examination report shows the Veteran's PTSD is manifested by intrusive thoughts, irritability, anger, recurring dreams of traumatic experiences, sleep impairment, hyper vigilance, avoidance, and euthymic mood. There was no evidence of depression, anxiety, panic disorder, delusion, flashbacks, suicidal thoughts, or obsessive behavior. The Veteran's impulse control, judgment, insight, and memory were intact. He has some interpersonal skills, but he has difficulty establishing close friendships. This symptomatology is contemplated by the rating criteria under the Veteran's service connected disability is currently rated. 38 C.F.R. § 4.130, Diagnostic Code 9411. The evidence does not show that his PTSD disability is outside the realm of the usual so as to render impracticable the schedular ratings. A review of the VA treatment records shows that the Veteran's disability due to the residuals of the back fracture is manifested by arthritis with painful motion. This symptomatology is contemplated by the rating criteria for muscoskeletal as well as considering the additional functional loss under 38 C.F.R. §§ 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, as noted above, the evidence also shows that the symptomatology for the Veteran's bilateral sensorineural hearing loss, tinnitus, and vestibular disorder are contemplated by the rating criteria applicable to those disabilities. 38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100 and 6204. There is no evidence of record that shows the Veteran's service connected disabilities, either individually or combined, reflect some factor which takes the case outside the normal considerations of the rating schedule. The Board acknowledges that the claims folder contains several statements to the effect that the Veteran is totally disabled and unemployable. A May 2003 private treatment record made in conjunction with a worker's compensation claim shows that the Veteran has difficulty lifting above his head due to his right shoulder and back disabilities. It was noted that these disabilities limit the Veteran's performance on the job. There was no indication that the Veteran was unable to work solely due to his service- connected back disability. A December 2005 notice letter from the Social Security Administration (SSA) shows the Veteran has been found disabled within the meaning SSA regulations because of bilateral sensorineural hearing loss, back disability, diabetes mellitus, carpal tunnel syndrome, right shoulder disability, and gout. There is no indication in the SSA notice letter that the Veteran is considered solely disabled because of his service connected disabilities. As noted above, impairment from non-service connected disabilities cannot be considered in the award of TDIU. See 38 C.F.R. § 3.341(a). The SSA determination demonstrates that the Veteran has other non-service connected disabilities, including diabetes mellitus, carpal tunnel syndrome, right shoulder disability, and gout that combined with his service-connected bilateral sensorineural hearing loss and back disability to render the Veteran "disabled" under SSA laws and regulations. Moreover, while SSA determination is relevant evidence the Board weighs and evaluates, it is not dispositive of the issue. Indeed, each agency has its own law and regulations to consider in making such a determination; and, as such, a finding of unemployability by SSA is not binding on VA. See, e.g., Faust v. West, 13 Vet. App. 342, 356 (2000). Thus, the Board considers SSA's determination, but it is not dispositive as to the whether the Veteran is entitled to TDIU. Here, after a review of the entire record, including the SSA determination, the Veteran's treatment records, the Board finds that the preponderance of the evidence is against the finding that the Veteran's service-connected disabilities precluded him from any substantially gainful employment. Based on the foregoing, the Board finds that the symptoms manifested by the Veteran's service-connected disabilities are contemplated by the applicable criteria under the current rating schedule. Additionally, the weight of the competent and probative evidence of record does not show that the Veteran is unemployable solely due to his service- connected disabilities. The competent medical and other evidence of record indicates that it is the combination of the Veteran's service-connected disabilities and his nonservice-connected disabilities that affects his ability to obtain and/or retain substantially gainful employment. There is no medical evidence that indicates the service- connected disabilities alone render the Veteran unemployable. Although the Board does not dispute that the Veteran experiences impairment due to his service-connected disabilities, ratings of the severity of these disabilities appear to be adequately reflected by the current schedular ratings. See Van Hoose, supra. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran's claim for TDIU must be denied. ORDER 1. Entitlement to service connection for diabetes mellitus is denied. 2. Entitlement to service connection for erectile dysfunction is denied. 3. Entitlement to an evaluation in excess of 20 percent for bilateral sensorineural hearing loss is denied. 4. Entitlement to an evaluation in excess of 10 percent for vestibular disorder is denied. 5. Entitlement to a total rating based upon individual unemployability due to service-connected disability is denied. REMAND As noted above, the Veteran has not yet received a statement of the case after his submission of a timely notice of disagreement from a July 2009 rating decision regarding the issues of an earlier effective date for the grant of service connection for residuals of a back fracture and a higher initial rating for tinnitus. Thus, because the Veteran has filed a notice of disagreement, a remand to the RO is necessary in order for the RO to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, these matters are REMANDED to the RO for the following action: The RO should provide the Veteran a Statement of the Case as to the issues of: (1) entitlement to an effective date prior to August 22, 2005 for grant of service connection for residuals of a back fracture; and (2) entitlement to a higher initial rating for tinnitus. The Statement of the Case should be sent to the latest address of record for the Veteran. The RO should inform the Veteran that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b) (2008). 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs