Citation Nr: 1237110	
Decision Date: 10/25/12    Archive Date: 11/09/12

DOCKET NO.  06-36 028	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a low back disorder, to include left lower extremity neurological manifestations.

2.  Entitlement to service connection for a bilateral leg disorder.

3.  Entitlement to service connection for diabetes mellitus, type II, to include as due to Agent Orange exposure.

4.  Entitlement to an initial compensable evaluation for bilateral hearing loss.

5.  Entitlement to an earlier effective date for the grant of service connection for left knee degenerative joint disease.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Millikan, Counsel


INTRODUCTION

The Veteran served on active military duty from April 1971 to April 1974.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) and September 2010 and October 2011 Board remands.

The issues of entitlement to service connection for diabetes mellitus, type II, entitlement to service connection for a low back disorder, and entitlement to an earlier effective date for the grant of service connection for left knee degenerative joint disease 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.


FINDINGS OF FACT

1.  The evidence of record indicates that there is no right or left leg disability, other than the service-connected right and left knee disabilities and left lower extremity radiculopathy, associated with the non-service-connected lumbar spine spondylosis.

2.  The Veteran's service-connected bilateral hearing loss is manifested by right ear hearing acuity of Level I and Level II and left ear hearing acuity of Level II.



CONCLUSIONS OF LAW

1.  A bilateral leg disorder was not incurred in or aggravated by active military service, nor is it secondary to a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2011).

2.  The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2011). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  VCAA notice requirements apply to all five elements of a service connection claim, including:  (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). 

Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 369 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

But "[i]n 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/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required).  Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  The Veteran has made no such assertions here.  Accordingly, regarding the initial evaluation, VA's duty to notify has been satisfied.  

Regarding the Veteran's service connection claim, a letter was not sent to the Veteran prior to initial adjudication of his service connection claim.  There is no prejudice, however, to the Veteran in proceeding to adjudication of this claim.  This is because a reasonable person would understand from the notice what was needed to prove service connection.  In the September 2012 supplemental statement of the case, the Veteran was notified of the information and evidence necessary to prove claims for direct and secondary service connection.  Additionally, the Veteran was represented by a certified veterans' service organization throughout the claims process.  Accordingly, VA's duty to notify has been satisfied.  

VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained.   The Social Security Administration notified VA that there were no records regarding the Veteran.  Regarding the service connection claim, VA provided the Veteran with an adequate medical examination in December 2011.  The examination is adequate because it contains a history obtained from the Veteran, a thorough orthopedic examination, and relevant etiological opinions with supporting explanation.  Regarding the increased evaluation claim, VA provided the Veteran with adequate audiological examinations in 2005 and 2009.  The examinations are adequate because they addressed objective puretone threshold values and functional effects of the hearing loss.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  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, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.

Service connection claim

Generally, service connection may be established for 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).  In order to establish service connection, the following must be shown:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage v. Gober, 10 Vet. App. 488, 496 (1997).  A layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet.  Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  Layno v. Brown, 6 Vet. App. 465, 469 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay statements do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Additionally, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

The Board finds that the evidence of record does not support a finding of service connection for a bilateral leg disorder.  This is because there is no current right or left leg disability.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167; Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  At the December 2011 VA examination, the examiner noted that the only lower extremity disabilities were the already service-connected knee disabilities and left lower extremity sciatica or radiculopathy, which was caused by the lumbar spine spondylosis.  Thus, the examiner did not find any stand-alone lower extremity disabilities.  The neurological manifestations of the low back disorder are remanded, as part and parcel of the claim for service connection for a low back disorder.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2011) (noting that associated objective neurological abnormalities are rated separately from the spine disability after service connection is granted). 

A review of the medical records indicates that there is no other left or right leg disorder at any time since the Veteran's 2005 claim for service connection.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (there is a current disability for VA purposes when a claimant has a disability at the time a claim is filed or during the pendency of that claim).  There are multiple private treatment records that document low back pain, knee pain, and leg pain, but there are no diagnoses of leg disabilities.  VA examinations in 2005 and 2009 also do not document any leg disabilities.  Finally, the Veteran and his spouse both provided testimony that he has leg pain.  They are competent to report their observations, but not to diagnose a leg disability.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) ("When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.") (quoting Frye v. United States, 293 F. 1013, 1014 (1923)).  Without a current disability, service connection cannot be granted.  Accordingly, service connection for a bilateral leg disorder is denied.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased evaluation claim

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2011).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2011).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2011).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Board notes, however, that this rule does not apply here, because the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Instead, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson, 12 Vet. App. at 126.  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126.  The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed.  Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). 

By a January 2005 rating decision, the RO granted service connection for left ear hearing loss and denied service connection for right ear hearing loss.  The RO assigned a noncompensable evaluation under 38 C.F.R. § 4.85, Diagnostic Code 6100, effective July 22, 2005.  The Veteran appealed the denial of service connection and the evaluation assigned to left ear hearing loss.  In a September 2010 decision, the Board granted service connection for right ear hearing loss and remanded the issue of entitlement to an initial compensable evaluation for bilateral hearing loss for adjudication by the AMC.  That grant was effectuated in a November 2011 rating decision.

Here, the Board notes that this issue was remanded in a September 2010.  In that decision, left ear hearing loss was granted.  As right ear hearing loss had already been granted in a prior decision, the new service-connected disability was bilateral hearing loss.  Accordingly, the Board remanded that issue for readjudication.  Although the AMC noted the issue as an initial compensable evaluation for left ear hearing loss, it adjudicated the issue as bilateral hearing loss.  Accordingly, there is no prejudice to the Veteran in proceeding to adjudicate this claim.  

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2011).  However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  Additionally, 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 (2011).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2011).  The assignment of a schedular disability evaluation for hearing impairment, however, is a purely mechanical application of the rating criteria from which the Board cannot deviate.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria.  38 C.F.R. §§ 4.85, 4.86 (2011).  Evaluations of bilateral defective hearing 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 hearing threshold level as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz (cycles per second).  Such audiometric test results are translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing.  A hearing impairment examination must be conducted by a state-licensed audiologist, include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, and are to be conducted without the use of hearing aids.  38 C.F.R. § 4.85.  

In certain situations, the rating criteria provide for rating exceptional patterns of hearing impairment.  If the puretone threshold is greater than 55 decibels at each of four specified frequencies (1000, 2000, 3000, and 4000 Hertz ), VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral and then elevate that numeral to the next highest numeral for consideration.  Each ear is evaluated separately.  38 C.F.R. § 4.86. 

Several lay statements were submitted regarding the Veteran's hearing loss.  The Veteran has stated that he has difficulty in any situation with background noise.  The Veteran's supervisor of the last 15 years noted that the Veteran did not hear well, which had sometimes caused a delay in execution of the work plan.  She has had to repeat herself to ensure that the Veteran understands what she said.  She stated that the Veteran was a valuable worker, and that his hearing loss was his only problem.  Veteran's wife stated that he often misses words or fails to properly understand words spoken to him.  

A November 2005 VA audiological evaluation was conducted upon review of the claims file.  The Veteran reported difficulty hearing conversation where there is background noise.  Pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
35
50
60
LEFT
20
25
30
55
80

The puretone threshold average was 43 in the right ear and 48 in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear.  

A 2008 private audiological evaluation was conducted.  Pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
30
55
85
LEFT
20
20
25
45
80

The examiner noted speech discrimination of 84 percent in the left ear and 88 percent in the right ear.  It is not clear that the Maryland CNC was used to obtain these scores.  

A February 2009 VA examination was conducted.  The Veteran reported significant difficulty hearing and understanding conversation where there is background noise.  He worked for the US Postal Service as a mail carrier.  Pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
35
55
70
LEFT
20
25
35
60
80

The puretone threshold average was 46.25 in the right ear and 50 in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 88 percent in the left ear.  The examiner found no significant effects on the Veteran's occupation, although there was some difficulty hearing with background noise. 

A July 2009 private audiological evaluation is of record.  The examiner found bilateral mild sloping sharply at 4,000 Hertz to a severe high frequency sensorineural hearing loss.  Pure tone thresholds, in decibels, appeared to be as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
35
40
65
LEFT
35
35
40
50
90

The puretone threshold average was 42.5 in the right ear and 53.75 in the left ear.  The examiner speech discrimination scores of 84 percent in the left ear and 92 percent in the right ear.  It is not clear that the Maryland CNC was used to obtain these scores.  

The Board finds that the evidence of record does not support entitlement to a compensable evaluation for bilateral hearing loss.  First, there is no exceptional pattern of hearing impairment because the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and the puretone thresholds were not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  See 38 C.F.R. § 4.86.  Second, the November 2005 VA examination demonstrates that right ear hearing impairment is represented by a Roman numeral designation of Level I, and left ear hearing impairment is represented by a Roman numeral designation of Level II.  See 38 C.F.R. § 4.85(b)-(f), Table VI.  Using Table VII, the numeral designations of Level I and Level II hearing acuity translate to a noncompensable, or zero percent, evaluation.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  Assuming the reported speech discrimination scores were obtained using the Maryland CNC test, the 2008 private examination demonstrates that right and left ear hearing impairment is represented by Roman numeral designations of Level II.  See 38 C.F.R. § 4.85(b)-(f), Table VI.  Using Table VII, the numeral designations of Level II hearing acuity in the bilateral ears translate to a noncompensable, or zero percent, evaluation.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  

The February 2009 VA examination demonstrates that right and left ear hearing impairment are represented by Roman numeral designations of Level II.  See 38 C.F.R. § 4.85(b)-(f), Table VI.  Using Table VII, the numeral designations of Level II hearing acuity in the bilateral ears translate to a noncompensable, or zero percent, evaluation.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  Assuming the reported speech discrimination scores were obtained using the Maryland CNC test, the 2009 private examination demonstrates that right ear hearing impairment is represented by a Roman numeral designation of Level I and left ear hearing impairment is represented by a Roman numeral designation of Level II.  See 38 C.F.R. § 4.85(b)-(f), Table VI.  Using Table VII, those Roman numeral designations translate to a noncompensable, or zero percent, evaluation.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  The assignment of a schedular disability evaluation for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate.  See Lendenmann, 3 Vet. App. at 349.  Accordingly, a schedular compensable evaluation for bilateral hearing loss is not warranted. 

Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2011); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record).  An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.  

In this regard, the schedular evaluations in this case are not inadequate.  Compensable ratings are provided for certain manifestations of the service-connected bilateral hearing loss but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's hearing loss, as the criteria assess hearing acuity and speech discrimination.  Moreover, the evidence does not demonstrate other related factors - there has been interference with employment, as noted by the Veteran's supervisor having to repeat work requests.  Additionally, the Veteran has provided testimony that his hearing loss causes difficulty at work and in any situation with background noise.  But the Veteran has retained his employment and has not alleged that he has missed work time or has incurred hospitalization due to his hearing loss disability.  Thus, the Board finds there has not been marked interference such that the schedular standards have been rendered impractical.  Accordingly, this issue need not be referred for consideration of an extraschedular rating.

After review of the evidence, the evidence of record does not warrant a compensable rating at any time during the period pertinent to this appeal.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); Fenderson, 12 Vet. App. at 126.  Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for a bilateral leg disorder is denied.

A compensable initial evaluation for bilateral hearing loss is denied.


REMAND

Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims.  Remand is required for additional development, etiological opinions, and the issuance of a statement of the case (SOC).

Regarding the issue of entitlement to service connection for diabetes mellitus, type II, to include as due to Agent Orange exposure, remand is required for additional development.  A Court or Board remand confers upon the appellant the right to compliance with that order.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Substantial, not strict, compliance is required.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  This issue was remanded by the Board in September 2010.  The remand directed development regarding the Veteran's alleged Agent Orange exposure.  That remand first noted the Veteran's description of Agent Orange exposure while in Germany, to include his duty station and military occupational specialty.  The remand directed that the AMC request additional information and evidence from the Veteran regarding his alleged exposure.  The AMC accomplished this in a September 201 letter.  The remand also directed that the AMC supply the Veteran's description of his exposure to the National Personnel Records Center (NPRC) for verification of such exposure.  If the NPRC was unable to verify Agent Orange exposure, the AMC was to attempt verification from the Joint Services Records Research Center (JSRRC).  This directive is based on VA's Adjudication Procedure Manual (M21-1MR).  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.1.  Although the Veteran did not supply additional information regarding his alleged exposure, the AMC did not attempt verification from the NPRC or the JSRRC as directed.  Such development was not contingent on the Veteran supplying additional information.  Remand is required, therefore, for compliance with the 2010 Board remand directives and Adjudication Manual provisions.

Regarding the issue of entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected right and left knee disabilities, remand is required for an addendum opinion.  A Court or Board remand confers upon the appellant the right to compliance with that order.  Stegall, 11 Vet. App. at 271.  The 2011 Board remand requested that the Veteran be provided with an examination and that etiological opinions be obtained.  Regarding the low back claim, the following opinions were requested:  (1) whether there is any current right or left leg disabilities, to include any neurological manifestations of his lumbar spine disorders; (2) whether any of the low back disorders were more likely than not caused or aggravated by military service; and (3) whether it was more likely than not that the service-connected right or left knee disabilities caused or aggravated any of the low back disorders.  A December 2011 VA examination was provided.  The examiner provided the following opinions:  the left lower extremity sciatica is caused by the lumbar spine condition and the right knee and active service did not cause or aggravate the lumbar spine condition.  The examiner did not expressly address whether the left knee disorder caused or aggravated the lumbar spine condition, and whether the two conditions together caused or aggravated the lumbar spine condition.  See D'Aries, 22 Vet. App. at 105.  Remand is thus required to obtain such an etiological opinion.

Regarding the issue of entitlement to an earlier effective date for the grant of service connection for left knee degenerative joint disease, the appeal must be remanded for the issuance of an SOC.  When a notice of disagreement (NOD) has been filed, the RO must issue an SOC.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (noting that the filing of an NOD initiates the appeal process and requires VA to issue an SOC).  In a May 2011 rating decision, the RO denied entitlement to an earlier effective date for service connection for left knee degenerative joint disease.  In June 2011, the Veteran filed an NOD.  The RO has yet not issued an SOC.  Accordingly, remand of this issue is required.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran an SOC concerning his claim for an earlier effective date.  Advise him that he still needs to file a timely substantive appeal in response to the SOC to perfect an appeal to the Board concerning this claim.  38 C.F.R. §§ 20.200, 20.302(b) (2011).  Also advise him of the time limit for perfecting the appeal of this claim.  Only if he perfects an appeal of this additional claim should it be returned to the Board for further consideration.

2.  Conduct all required development regarding the Veteran's claim for entitlement to service connection for diabetes mellitus, type II, based on non-Vietnam Agent Orange exposure.  Such development includes, but is not limited to, development as directed by the VA Adjudication Procedure Manual (M21-1MR) and the September 2010 BVA remand.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.1.  All actions taken must be documented in the claims file.  

3.  Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  

4.  After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the Veteran's bilateral leg and low back disorders from a VA examiner.  The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  The rationale for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion.  The examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed low back disorder was caused or aggravated by the service-connected right knee disability, left knee disability, or the combination of the right and left knee disabilities.  

5.  Review the medical report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AMC must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

6.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran 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. 2011).




______________________________________________
J.A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs