Citation Nr: 1207696 Decision Date: 02/29/12 Archive Date: 03/09/12 DOCKET NO. 08-19 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include as due to asbestos. 2. Entitlement to service connection for Parkinson's disease. 3. Entitlement to service connection for arthritis of the back. 4. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD) with depression. 5. Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 1969 to October 1971; his military occupational specialty was machinist mate. In February 2010, the Board of Veterans' Appeals (Board) reopened a claim for service connection for a psychiatric disorder and remanded the reopened claim, along with claims for service connection for a respiratory disorder, Parkinson's disease, arthritis of the back, as well as a claim for an initial compensable evaluation for service-connected bilateral hearing loss, to the Department of Veterans Affairs (VA) regional office in Wichita, Kansas (RO) for additional development, to include obtaining Social Security Administration (SSA) records, information pertaining to the Veteran's service on the USS AGERHOLM, and obtaining current VA psychiatric and audiological evaluations. The Veteran's SSA records and a statement from the National Archives on the USS AGERHOLM were subsequently added to the claims files, as were VA psychiatric and audiological examination reports dated in October 2010. Based on the above, there has been substantial compliance with the February 2010 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). A September 2011 rating decision granted service connection for PTSD with depression and assigned a 70 percent rating effective May 18, 2005. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in November 2009, and a transcript of the hearing is of record. For reasons discussed hereinbelow, the issue of entitlement to service connection for a psychiatric disorder other than PTSD with depression is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. All known and available service medical records have been obtained; the Veteran has been advised under the facts and circumstances of this case as to the evidence which would substantiate his claims for service connection for a respiratory disorder, Parkinson's disease, and arthritis of the back and his claim for an initial compensable evaluation for bilateral hearing loss; and he has otherwise been assisted in the development of his claims. 2. The Veteran's statements that he has a respiratory disorder, Parkinson's disease, and arthritis of the back due to service are not competent. 3. The findings on VA respiratory evaluation in April 2008 are competent, credible, and highly probative. 4. The Veteran does not have a respiratory disorder due to service. 5. The Veteran does not have Parkinson's disease due to service. 6. The Veteran does not have arthritis of the back due to service. 7. VA audiology evaluation in October 2010 revealed average pure tone thresholds at the relevant frequencies of 55 decibels in the left ear and 45 decibels in the right ear; speech discrimination scores were 84 percent in the left ear and 80 percent in the right ear. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a respiratory disorder have not been met. 38 U.S.C.A. §§ 101, 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.304 (2011). 2. Parkinson's disease was not incurred in or aggravated by active duty; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1137, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.1, 3.303, 3.307, 3.309 (2011). 3. Arthritis of the back was not incurred in or aggravated by active duty; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1137, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.1, 3.303, 3.307, 3.309 (2011). 4. The criteria for the assignment of an initial compensable evaluation for service-connected bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2011). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter was sent to the Veteran in July 2005, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. Another VCAA letter was sent to the Veteran in December 2008. Service connection was subsequently granted for a bilateral hearing loss by rating decision in March 2007. Although the Veteran was not notified of the requirements to establish entitlement to an increased rating until later, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate newly raised or "downstream" issues, such as the claims for increased compensation following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Consequently, notice has been given in this case with respect to the increased rating claim. In accordance with the requirements of VCAA, the letters informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private evidence was subsequently added to the claims files after the letters. The Veteran was informed in a March 2006 letter as to disability ratings and effective dates any of his claims was granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA respiratory examination was conducted in April 2008 and an audiological evaluation was conducted in October 2010. Although no nexus opinion has been obtained on the issues involving Parkinson's disease and arthritis of the back, none is needed. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Because not all of these conditions have been met, as will be discussed below, a VA examination is not necessary. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A. Specifically, the Court held that the third element, an indication that the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. There is no medical evidence of Parkinson's disease or arthritis of the back until many years after service and no indication that either disability is related to service. In fact, the Veteran noted during VA hospitalization in March and April 2005 that he had had a Parkinson diagnosis for about 2-3 years. With respect to arthritis of the back, the Veteran testified in November 2009 that he did not injury his back in service but that he began having back problems in approximately 2004 as a result of physical activity in service. Consequently, the Veteran has not presented evidence indicating a nexus between Parkinson's disease or arthritis of the back and service. Thus, there exists no reasonable possibility that a VA examination would result in findings favorable to the Veteran. Accordingly, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his November 2009 hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). The Board has reviewed the record in regard to whether the Veteran was afforded his due process rights in the development of evidence through testimony. At the November 2009 hearing, the Veteran was afforded an extensive opportunity to present testimony, evidence, and argument. The transcript reveals an appropriate colloquy between the Veteran and the Veterans Law Judge, in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999) (relative to the duty of hearing officers to suggest the submission of favorable evidence). Analyses of the Claims Service Connection Claims The Veteran seeks service connection for a respiratory disorder, for Parkinson's disease, and for arthritis of the back. He has contended that these problems are related to service. Because the evidence does not show a respiratory disorder, Parkinson's disease, or arthritis of the back due to service, the preponderance of the evidence is against the claims and the appeals will be denied. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In the case of paralysis agitans (Parkinson's disease) or arthritis, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). In order to establish service connection for the claimed disorder, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Respiratory Disorder The Veteran's service treatment reports do not contain any complaints or findings of a respiratory disability, to include on discharge medical history and medical examination reports dated in October 1971. A September 2000 VA chest X-ray was normal. According to private treatment records dated in December 2002, the Veteran had an upper respiratory infection, probable early bronchitis. Bronchitis was noted in November 2004. A January 2005 VA chest X-ray revealed left perihilar and left upper lobe infiltrate. The diagnoses on hospitalization at the University of Kansas Hospital in March 2005 included chronic obstructive pulmonary disease (COPD). It was noted on VA hospitalization in March and April 2005 that the Veteran had asthma. On VA lung evaluation in April 2008, which included review of the medical records, the Veteran complained of a chronic cough and sputum production and said that he was exposed to asbestos in service. A chest X-ray was considered normal. The diagnosis was COPD, more likely than not secondary to long-term smoking. The examiner noted that the Veteran had been a 1-2 pack a day smoker for 42 years and that there was no evidence of asbestos on chest X-ray. The Veteran testified at his video conference hearing in November 2009 that he was treated for a lung disorder in service. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). While the Veteran is competent to report his lung problems, he is not competent to opine that he has a respiratory disorder that is causally related to service. Laypersons are not competent to provide evidence in complex medical situations. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Although the Veteran has testified that he was treated for lung problems in service, the service records on file, which include his discharge medical history and medical examination reports, do not include any complaints or findings of a respiratory disorder. Moreover, the initial post-service notation of a respiratory problem was not until December 2002, which is over 30 years after discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered as a factor, along with other factors concerning the Veteran's health and medical treatment during and after military service). The Board also notes that the only medical opinion on file, in April 2008, is against the claim, finding that chest X-rays did not show evidence of asbestos. Consequently, service connection for a respiratory disorder, to include as due to exposure to asbestos, is denied. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connected claim denied above, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Parkinson's Disease The Veteran's service treatment reports do not contain any complaints or findings of Parkinson's disease, including on discharge medical history and medical examination reports dated in October 1971. The initial post-service diagnosis of Parkinson's disease was not until private treatment reports dated in September 2004, when the assessment was recent diagnosis of Parkinson's disease. Parkinson's disease was part of the diagnoses in University of Kansas Hospital records for March 2005. It was noted during VA hospitalization in March and April 2005 that the Veteran had had a diagnosis of Parkinson's disease for approximately 2-3 years. The Veteran testified at his November 2009 hearing that although Parkinson's disease was not diagnosed until early 2009, he had been told by a VA physician that it was due to the stress of service. The Board finds that entitlement to service connection for Parkinson's disease is not warranted. The Veteran's service treatment records do not reveal any complaint, diagnosis, or treatment for a disorder indicative of Parkinson's disease. In fact, there is no medical evidence of Parkinson's disease until 2004, more than 32 years after service discharge, when it was noted that this was a recent diagnosis. See Maxson, supra. There is also no favorable nexus opinion on file. The Veteran is competent to report his symptoms and medical history; however, despite his testimony that he believes his Parkinson's disease is related to the stress of service, he is not competent to provide an opinion with regard to the etiology of his Parkinson's disease. See Jandreau, supra. His contentions are contradicted by his service discharge report and the post-service medical evidence of record. These contemporaneous documents are afforded significant probative weight, since they were created at the time of service or at the time of medical treatment, as compared to statements given many years later. As a result, this evidence is more probative. Therefore, continuity of symptomatology since service is not established and service connection cannot be granted on this basis. There is no nexus opinion in favor of the claim. In reaching the decision above the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against entitlement to service connection for Parkinson's disease, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Arthritis of the Back The Veteran's service treatment reports do not contain any complaints or findings of a back disorder, to include on discharge medical history and medical examination reports dated in October 1971. The initial post-service notation of a back problem was not until an April 1992 MRI of the lumbar spine revealed degenerative disc disease of L4-L5. Private treatment reports dated from November 1997 to February 2003 reveal complaints of low back pain. Degenerative joint disease of the lumbar spine was diagnosed on private treatment records in September 2004. VA treatment records for March 2005 reveal complaints of mid and low back pain. VA treatment reports from January 2008 to May 2010 do not contain evidence of treatment or opinion involving back disability, although the Veteran was treated for a right shoulder disorder. The Veteran testified at his November 2009 hearing that he did not specifically injure his back in service, that his back problems began in approximately 2004, and that he was told by a VA health care provider in early 2009 that his back disorder is related to his activities in service. The Board has considered the Veteran's hearing testimony and the written statements on file in support of his claim for service connection for arthritis of the back. The Veteran is competent to report his back complaints. However, because there is no notation of a back problem in service or until more than 20 years after service discharge, because the Veteran has testified that he did not injure his back in service and that his back did not begin to bother him until many years after service discharge, and because there is no nexus opinion in favor of the claim, the Board does not find the Veteran's contentions to be credible because the objective evidence of record does not substantiate his allegations. While the Veteran testified in November 2009 that he was told by a VA health care provider during treatment in early 2009 that his low back disorder was related to service, the VA treatment reports on file beginning in January 2009 do not show any treatment or opinion related to the Veteran's back, although he was treated for a right shoulder disorder. Consequently, the preponderance of the evidence is against the claim, and the claim for service connection for arthritis of the back is denied. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for arthritis of the back, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Increased Rating Claim The Veteran was granted service connection for bilateral hearing loss by rating decision in March 2007, which assigned a noncompensable rating effective May 18, 2005. The Veteran contends that his hearing loss is more severely disabling than is reflected by the currently assigned rating. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the evidence does not warrant a compensable rating for hearing loss, and the claim will be denied. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2011). Separate diagnostic codes identify the various disabilities. 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 disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, as in this case, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two 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 (2011). Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which, in turn, are measured by pure tone audiometric tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second). See Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI. Tables VI and VII as set forth in § 4.85(h) are used to calculate the rating to be assigned. In instances where, because of language difficulties, the Chief of the Audiology Clinic certifies that the use of both pure tone averages and speech discrimination scores is inappropriate, Table VIa is to be used to assign a rating based on pure tone averages. 38 C.F.R. § 4.85(h) (2011). In guidance for cases involving exceptional patterns of hearing impairment, the schedular criteria stipulates that, 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. 38 C.F.R. § 4.86(a). Additionally, 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 Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b) (2011). A July 2006 VA audiological evaluation revealed that the Veteran's pure tone thresholds for the left ear, in decibels, were: 10/15 at 1000 Hz, 25 at 2000 Hz, 65/65 at 3000 Hz, and 70 at 4000 Hz. The pure tone threshold average was 44. Pure tone thresholds for the right ear, in decibels, were: 10/10 at 1000 Hz, 25 at 2000 Hz, 45/45 at 3000 Hz, and 60 at 4000 Hz. The pure tone threshold average was 35. Speech recognition was 82 percent in the left ear and 86 percent in the right ear per the Maryland CNC test. The Veteran complained that he had difficulty hearing in noisy situations, when the television was on, on the telephone, and talking to his wife. VA audiological evaluation in October 2010 revealed that the Veteran's pure tone thresholds for the left ear, in decibels, were: 35 at 1000 Hz, 45 at 2000 Hz, 75 at 3000 Hz, and 65 at 4000 Hz. The pure tone threshold average was 55. Pure tone thresholds for the right ear, in decibels, were: 30 at 1000 Hz, 35 at 2000 Hz, 55 at 3000 Hz, and 60 at 4000 Hz. The pure tone threshold average was 45. Speech recognition was 84 percent in the left ear and 80 percent in the right ear per the Maryland CNC test. In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann, supra. Applying the above July 2006 and October 2010 audiological findings to the schedular criteria for rating hearing impairment, hearing impairment is no greater than Level III in either ear on either examination. With the VA evaluation results as noted on VA evaluations above, application of Table VI and Table VII warrant a noncompensable evaluation. The Board notes that the provisions of 38 C.F.R. § 4.86(a), which provide alternative means of rating hearing loss if there is evidence of exceptional patterns of hearing impairment, are not applicable in this case. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court observed that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Department of Veterans Affairs Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2011). Although the Veteran has complained of hearing problems in noisy situations, when watching television, when talking on the telephone, or when talking to his wife, the results of his VA audiological evaluations show average pure tone thresholds at the relevant frequencies that translate to a noncompensable rating when coupled with the discrimination scores recorded. As previously noted, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran is competent to report his hearing symptoms, such as difficulty hearing the television and when talking on the telephone. While his complaints are competent evidence, they have been considered in evaluating the bilateral hearing loss at issue; however, VA audiometric evaluations have not shown the severity required for a higher schedular rating, as discussed above. Referral for consideration of an extra-schedular rating was also considered in this case under 38 C.F.R. § 3.321(b)(1). In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extraschedular consideration. The level of severity of his hearing loss is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extraschedular consideration. As the preponderance of the evidence is against the increased rating claim denied above, the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a respiratory disorder is denied. Service connection for Parkinson's disease is denied. Service connection for arthritis of the back is denied. An initial compensable evaluation for service-connected bilateral hearing loss is denied. REMAND This case was remanded to the RO in February 2010 for psychiatric evaluation and a nexus opinion, and the examiner was told that if a psychiatric condition other than PTSD was found, an opinion was to be provided as to whether it was at least as likely as not that this psychiatric condition was related to service. A psychiatric examination was conducted in October 2010, and the examiner diagnosed PTSD, a bipolar disorder by history, and a major depressive disorder. While it was noted that the depressive disorder was as likely as not related to the PTSD, the examiner did not provide an opinion on whether the Veteran's bipolar disorder, which has been diagnosed on several occasions since service, was related to service. The Courts have held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). As indicated above, the Board finds that the RO did not adequately comply with the terms of the Board's February 2010 remand. Id. Consequently, a remand of this case for additional development is warranted. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO will request that the Veteran provide the names, addresses, and dates of treatment of all health care providers, both VA and non-VA, who have treated him for a psychiatric disorder since October 2010, which is the date of the most recent medical evidence on file. After securing the necessary authorization, the AMC/RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform the Veteran of this and provide him an opportunity to submit copies of the outstanding medical records. 2. After the above has been completed, the AMC/RO must arrange for review of the Veteran's claims files by the VA examiner who evaluated him in October 2010 to obtain clarification as directed by the Board's February 2010 remand. If this health care provider is not available, the review will be conducted by another appropriate health care provider. The claims folder must be made available and reviewed by the health care provider. The following considerations will govern the opinion: a. The claims folder and a copy of this remand will be made available to the reviewer for review in conjunction with the opinion, and the reviewer must specifically acknowledge receipt and review of these materials in any report generated. The reviewer must provide an opinion on whether the Veteran's bipolar disorder is causally related to service or to service-connected PTSD with depression. If it is determined by the reviewer that the bipolar disorder is causally related to service-connected PTSD with depression, the reviewer will discuss whether it is a separate disorder or is part of the symptomatology of the already service-connected condition. b. In all conclusions, the reviewer must identify and explain the medical basis or bases, with identification of the evidence of record. If the reviewer is unable to make a determination without resorting to mere speculation, he/she will so state. c. If the reviewer responds to the above inquiry that he/she cannot so opine without resort to speculation, the AMC/RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. d. If the reviewer concludes that additional examination is necessary to provide the above opinion, an examination will be conducted. e. If an examination is conducted, any necessary tests or studies must be performed, and all clinical findings will be reported in detail and correlated to a specific diagnosis. All findings and conclusions will be set forth in a legible report. A rationale must be offered for all conclusions. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail. The report prepared must be typed. 3. Thereafter, the AMC/RO will review the claims files and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See 38 C.F.R. § 4.2 (If the findings on an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). 4. If it is determined that another psychiatric evaluation is warranted, the AMC/RO will notify the Veteran that it is his responsibility to report for the above examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of a claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for an aforementioned examination, documentation needs to be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the AMC/RO will consider all of the evidence of record and re-adjudicate the Veteran's claim for service connection for a psychiatric disorder other than PTSD with depression. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case ("SSOC"). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to comply with all due process considerations. No inference should be drawn regarding the final disposition of these claim as a result of this action. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs