Citation Nr: 1033045	
Decision Date: 09/02/10    Archive Date: 09/13/10

DOCKET NO.  06-34 100A	)	DATE
	)
	)

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


THE ISSUES

1.  Evaluation of bilateral hearing loss disability, evaluated as 
10 percent disabling from May 19, 2009.  

2.  Evaluation of bilateral hearing loss disability, evaluated as 
0 percent disabling prior to May 19, 2009.  

3.  Entitlement to service connection for bleeding duodenal ulcer 
claimed as a result of herbicide exposure.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

T.S. Willie, Associate Counsel


INTRODUCTION

The Veteran had active service from February1966 to February 
1968.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from rating decisions of the Houston, Texas, Regional 
Office (RO).  

The Veteran testified before the undersigned Veterans Law Judge 
in June 2010.  A transcript of that hearing is associated with 
the record.  

The issue of entitlement to an earlier effective date for 
the grant of service connection for bilateral hearing loss 
disability has been raised by the record, but has not been 
adjudicated by the Agency of Original Jurisdiction (AOJ). 
Therefore, the Board does not have jurisdiction over it, 
and it is referred to the AOJ for appropriate action.  

The issues of evaluation of bilateral hearing loss disability, 
evaluated as 10 percent disabling from May 19, 2009 and 
entitlement to service connection for bleeding duodenal ulcer 
claimed as a result of herbicide exposure are addressed in the 
REMAND portion of the decision below and are REMANDED to the RO 
via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

On VA audiometric examination in February 2007, the right ear had 
an average decibel loss of 54 with a speech recognition score of 
94 percent (Level I).  The left ear had an average decibel loss 
of 66 with a speech recognition score of 84 percent (Level III).


CONCLUSION OF LAW

The criteria for a compensable rating for a bilateral hearing 
loss disability prior to May 19, 2009 have not been met.  38 
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic 
Code 6100 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), codified in 
pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 
2006), and the pertinent implementing regulation, codified at 
38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant 
in obtaining evidence necessary to substantiate a claim but is 
not required to provide assistance to a claimant if there is no 
reasonable possibility that such assistance would aid in 
substantiating the claim.  As part of the notice, VA is to 
specifically inform the claimant and the claimant's 
representative, if any, of which portion, if any, of the evidence 
is to be provided by the claimant and which part, if any, VA will 
attempt to obtain on behalf of the claimant.  

The Board also notes that the United States Court of Appeals for 
Veterans Claims (Court) has held that the plain language of 
38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a 
claimant pursuant to the VCAA be provided "at the time" that, 
or "immediately after," VA receives a complete or substantially 
complete application for VA-administered benefits.  Pelegrini v. 
Prinicpi, 18 Vet. App. 112, 119 (2004).  The timing requirement 
enunciated in Pelegrini applies equally to the initial 
disability-rating and effective-date elements of a service 
connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The record reflects that the originating agency provided the 
Veteran with the notice required under VCAA by letters dated in 
September 2004 and April 2006.  The Board notes that the Veteran 
is challenging the disability evaluation assigned following the 
grant of service connection.  In Dingess, the U.S. Court of 
Appeals for Veterans Claims held that in cases 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 section 5103(a) notice no longer required 
because the purpose that the notice is intended to serve has been 
fulfilled.  Dingess, supra. at 490-191.  Thus, VA's duty to 
notify in this case has been satisfied.  

Moreover, the Board notes that the Veteran was afforded a hearing 
before the undersigned Veterans Law Judge (not a hearing officer) 
in June 2010.  At the start of the hearing, the VLJ clarified the 
issues on appeal.  During the hearing, the Veteran was encouraged 
to submit additional evidence to support his claim.  This action 
supplements VA's compliance with the VCAA and satisfies 38 C.F.R. 
§ 3.103.  

VA must also make reasonable efforts to assist the claimant in 
obtaining evidence necessary to substantiate the claim for the 
benefits sought, unless no reasonable possibility exists that 
such assistance would aid in substantiating the claim.  38 
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).  In 
connection with the current appeal, appropriate examinations have 
been conducted and available service records have been obtained.  
We also note that the VA examinations were adequate.  The 
examiners reviewed the history, established clinical findings and 
presented reasons for the opinions.  

For the foregoing reasons, the Board concludes that all 
reasonable efforts were made by VA to obtain evidence necessary 
to substantiate the claim.  The evidence of record provides 
sufficient information to adequately evaluate the claim, and the 
Board is not aware of the existence of any additional relevant 
evidence which has not been obtained.  No further assistance to 
the Veteran with the development of evidence is required. 38 
U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d).  Accordingly, the 
Board will address the merits of the claim. 

				Legal Criteria and Analysis

Disability evaluations are determined by evaluating the extent to 
which a veteran's service-connected disability adversely affects 
his ability to function under the ordinary conditions of daily 
life, including employment, by comparing his symptomatology with 
the criteria set forth in the Schedule for Rating Disabilities 
(rating schedule).  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 
4.1, 4.2, 4.10 (2009).  If two evaluations are potentially 
applicable, the higher evaluation will be assigned if the 
disability picture more nearly approximates the criteria required 
for that evaluation; otherwise, the lower rating will be 
assigned.  38 C.F.R. § 4.7 (2009).

Where an award of service connection for a disability has been 
granted, separate evaluations can be assigned for separate 
periods of time based on the facts found.  In other words, the 
evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 
505 (2008).  A disability may require re-evaluation in accordance 
with changes in a veteran's condition.  It is thus essential, in 
determining the level of current impairment, that the disability 
be considered in the context of the entire recorded history.  38 
C.F.R. § 4.1 (2009).  We conclude that the disability has not 
significantly changed and that a uniform rating is warranted 
during the time frame addressed in this decision.  

The Veteran's service-connected bilateral hearing loss disability 
has been rated by the RO under the provisions of Diagnostic Code 
6100.  The assignment of disability ratings for hearing 
impairment is derived by a mechanical application of the rating 
schedule to the numeric designations assigned after audiometric 
evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 
345 (1992).  

The severity of a hearing loss disability is determined by 
applying the criteria set forth at 38 C.F.R. § 4.85.  Under these 
criteria, evaluations of bilateral hearing loss range from 
noncompensable to 100 percent based on organic impairment of 
hearing acuity as measured by the results of controlled speech 
discrimination tests together with the average pure tone hearing 
threshold level, as measured by pure tone audiometry tests in the 
frequencies 1,000, 2,000, 3,000 and 4,000 Hertz, or cycles per 
second, divided by four.  This average is used in all cases to 
determine the Roman numeral designation for hearing impairment 
from Table VI or VIa.  38 C.F.R. § 4.85(a), (d).

Table VI, "Numeric Designation of Hearing Impairment Based on 
Pure tone Threshold Average and Speech Discrimination," is used 
to determine a Roman numeral designation (I through XI) for 
hearing impairment based on a combination of the percent of 
speech discrimination (horizontal rows) and the pure tone 
threshold average (vertical columns).  The Roman numeral 
designation is located at the point where the percentage of 
speech discrimination and pure tone threshold average intersect.  
38 C.F.R. § 4.85(b).

Table VII, "Percentage Evaluations for Hearing Impairment," is 
used to determine the percentage evaluation by combining the 
Roman numeral designations for hearing impairment of each ear.  
The horizontal rows represent the ear having the better hearing, 
while the vertical columns represent the ear having the poorer 
hearing.  The percentage evaluation is located at the point where 
the row and column intersect.  38 C.F.R. § 4.85(e).  In addition, 
38 C.F.R. § 4.86 applies to exceptional patterns of hearing 
impairment.  Under its provisions, when the pure tone threshold 
at each of the four specified frequencies (1000, 2000, 3000, and 
4000 Hertz) is 55 decibels or more, the rating specialist will 
determine the Roman Numeral designation for hearing impairment 
from either Table VI or Table VIa, whichever results in the 
higher numeral.  Each ear will be evaluated separately. When the 
pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 
decibels or more at 2000 Hertz, the rating specialist will 
determine the Roman numeral designation for hearing impairment 
from either Table VI or Table VIa, whichever results in the 
higher numeral.  That numeral will then be elevated to the next 
higher numeral.  38 C.F.R. § 4.86.  

On the October 2004 VA compensation and pension examination, pure 
tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
50
65
60
65
LEFT
60
65
75
80

The Veteran had a pure tone average of 60 for the right ear and 
70 for the left ear.  Speech audiometry revealed speech 
recognition ability of 96 percent in the right ear and 96 percent 
in left ear.  

On the May 2005 audiological examination, pure tone thresholds, 
in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
40
50
50
55
LEFT
50
55
65
65

The Veteran had a pure tone average of 49 for the right ear and 
59 for the left ear.  Speech audiometry revealed speech 
recognition ability of 88 percent in the right ear and 84 percent 
in left ear.  

On the February 2007 audiological examination, pure tone 
thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
40
45
65
65
LEFT
50
65
75
75

The Veteran had a pure tone average of 54 for the right ear and 
66 for the left ear.  Speech audiometry revealed speech 
recognition ability of 94 percent in the right ear and 84 percent 
in left ear.  

The October 2004 audiological evaluation revealed an average 
right ear pure tone decibel loss of 60 with speech recognition of 
96 percent.  This corresponds to a numeric designation of Level 
II hearing in the right ear.  38 C.F.R. § 4.87, Table VI (2009).  
The Veteran had a left ear average pure tone decibel loss of 70 
with speech recognition of 96 percent.  These findings are 
consistent with Level II hearing in the left ear.  These combined 
numeric designations result in a rating of 0 percent under 
Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII (2009).  

The May 2005 audiological evaluation revealed an average right 
ear pure tone decibel loss of 49 with speech recognition of 88 
percent.  This corresponds to a numeric designation of Level II 
hearing in the right ear.  38 C.F.R. § 4.87, Table VI (2009).  
The Veteran had a left ear average pure tone decibel loss of 59 
with speech recognition of 84 percent.  These findings are 
consistent with Level III hearing in the left ear.  These 
combined numeric designations result in a rating of 0 percent 
under Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII (2009).  

The February 2007 audiological evaluation revealed an average 
right ear pure tone decibel loss of 54 with speech recognition of 
94 percent.  This corresponds to a numeric designation of Level I 
hearing in the right ear.  38 C.F.R. § 4.87, Table VI (2009).  
The Veteran had a left ear average pure tone decibel loss of 66 
with speech recognition of 84 percent.  These findings are 
consistent with Level III hearing in the left ear.  These 
combined numeric designations result in a rating of 0 percent 
under Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII (2009).  

As shown above, at most, the audiometric examinations support a 0 
percent rating for bilateral hearing loss disability prior to May 
19, 2009.  Although the Veteran asserts that his hearing loss was 
worse than evaluated, the medical evidence prepared by a skilled 
neutral professional is more probative.  The Board notes that the 
Veteran's assertions that his hearing had deteriorated are 
credible.  However, in determining the actual degree of 
disability, the examination findings are more probative of the 
degree of impairment.  Moreover, as noted above, the Court has 
noted that the assignment of disability ratings for hearing 
impairment is derived at by a mechanical application of the 
numeric designations assigned after audiometric evaluations are 
rendered.  Lendenmann, supra.  In this case, the numeric 
designations produce a 0 percent disability evaluation.  38 
C.F.R. Part 4 Diagnostic Code 6100.  

Furthermore, the Board notes that the Veteran did not have an 
exceptional pattern of hearing as defined by 38 C.F.R. § 4.86 
given that the results of audiology testing did not show puretone 
thresholds at all four of the specific frequencies of 55 decibels 
or more.  The results also failed to show that the pure tone 
threshold were 30 decibels or less at 1,000 Hertz, and 70 
decibels or more at 2,000 Hertz.  Accordingly, the 0 percent 
rating assigned prior to May 19, 2009 accurately reflects the 
degree of the Veteran's service-connected hearing impairment.  38 
U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, § 4.85, Diagnostic Code 
6100.  

Based on the foregoing, the claim for a compensable rating for 
bilateral hearing loss disability prior to May 19, 2009 must be 
denied.  In reaching this conclusion, the Board has considered 
the applicability of the benefit-of-the-doubt doctrine.  However, 
as the preponderance of the evidence is against the Veteran's 
claim, that doctrine is not applicable in the instant appeal.  38 
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 
(1991).

The Board further notes that referral for extraschedular 
consideration is not warranted.  Consideration of referral for an 
extraschedular rating requires a three-step inquiry. See Thun v. 
Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom.  Thun v. 
Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is 
whether the schedular rating adequately contemplates the 
veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the 
criteria reasonably describe the claimant's disability level and 
symptomatology, then the claimant's disability picture is 
contemplated by the rating schedule, the assigned schedular 
evaluation is, therefore, adequate, and no referral is required.  
If the schedular evaluation does not contemplate the claimant's 
level of disability and symptomatology and is found inadequate, 
then the second inquiry is whether the claimant's exceptional 
disability picture exhibits other related factors such as those 
provided by the regulation as governing norms.  If the veteran's 
disability picture meets the second inquiry, then the third step 
is to refer the case to the Under Secretary for Benefits or the 
Director of the Compensation and Pension Service to determine 
whether an extraschedular rating is warranted. 

Here, the Board finds that the record reflects that the Veteran 
has not required frequent periods of hospitalization for his 
disability and that the manifestations of the disability are 
contemplated by the schedular criteria.  Therefore, there is no 
reason to believe that the average industrial impairment from the 
disability would be in excess of that contemplated by the 
schedular criteria.  Therefore, referral of the case for extra-
schedular consideration is not in order.  


ORDER

A compensable rating for a bilateral hearing loss disability 
prior to May 19, 2009 is denied.  


REMAND

The Veteran has appealed the denial of an evaluation higher than 
10 percent disabling for bilateral hearing loss disability from 
May 19, 2009.  In his June 2010 hearing, the Veteran related that 
his hearing loss disability worsened and that he has had more 
trouble hearing.  He also related having problems with his 
hearing aids.  As the Veteran has related that his hearing loss 
disability has worsened since his last 
examination, the Board finds that another VA compensation and 
pension examination is necessary before this issue can be 
decided.  

The Veteran has also appealed the denial of entitlement to 
service connection for bleeding duodenal ulcer claimed as a 
result of herbicide exposure.  Post service treatment records 
show a March 1990 impression of melena with lower GI bleeding, 
rule out peptic ulcer disease.  The record further shows a 
history of duodenal ulcer dating back to the 1990s.  

In an April 2007 statement, the Veteran's wife stated that she 
noticed the Veteran started having stomach problems in December 
1966.  She noted that he developed a bleeding ulcer by 1969 
caused by stress.  In a May 2007 statement, the Veteran's mother 
in law related that she recalled the Veteran being taken to the 
hospital in 1969 for what was determined to be a bleeding ulcer.  
His brother law related the same in another statement received in 
May 2007.  

In his June 2010 hearing, the Veteran related that although he 
did not complain of an ulcer or any kind of abdominal problems or 
complications while in service, he did have problems.  He 
reported having stomach issues in service, especially in Vietnam.  
He stated that he went to sick call and was given Maalox or 
something like it.  After discharge, the Veteran asserts that he 
went to a private doctor, was put on medication and started 
getting bleeding ulcers.  His wife indicated that he started 
seeing a doctor for this problem right after service in 1969.  
The Veteran related that that doctor who treated him directly 
after service is now deceased and those records are unavailable.  

In light of the above, the Board finds that further development 
is necessary before the issue of service connection can be 
decided.  Here, the record shows that the Veteran has related 
having stomach problems in service and that such continued after 
service.  Lay statements also show that the Veteran was taken to 
emergency for an ulcer a year after service.  As such, the Board 
finds that an examination and etiology opinion is needed to 
decide this claim.  

Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 
3.3159(c)(4)(i), VA will obtain an examination or an opinion if 
it is necessary to decide the claim.  To ensure that VA has met 
its duty to assist the claimant in developing the facts pertinent 
to the claims and to ensure full compliance with due process 
requirements, a remand is necessary.

Accordingly, the case is REMANDED for the following action:

1.	Schedule the Veteran for a VA compensation 
and pension examination to determine the 
severity of his bilateral hearing loss 
disability.  All appropriate tests and 
studies should be accomplished and all 
clinical findings should be reported in 
detail.   

2.	Schedule the Veteran for a VA examination 
to determine the nature and etiology of 
his bleeding duodenal ulcer.  The claims 
folder must be made available to the 
examiner for review.  All findings should 
be reported in detail.  If a disability is 
found, the examiner should address whether 
it is more likely than not (i.e., to a 
degree of probability greater than 50 
percent), at least as likely as not (i.e., 
50-50 probability), or unlikely (i.e., a 
probability of less than 50 percent) that 
any current bleeding duodenal ulcer is 
related to service to include herbicide 
exposure.  A complete rationale for all 
opinions should be provided. 


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).


______________________________________________
ROBERT O'BRIEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs