Citation Nr: 1300752 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 07-30 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a hernia. 2. Entitlement to service connection for a prostate disability, to include erectile dysfunction (ED) and benign prostate hypertrophy (BPH), claimed as secondary to service-connected asbestosis. 3. Entitlement to a rating in excess of 30 percent for asbestosis. 4. Entitlement to a compensable rating for left ear hearing loss, prior to March 31, 2006. 5. Entitlement to an initial compensable rating for bilateral hearing loss since March 31, 2006. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active military service from July 1951 to January 1954. This appeal comes to the Board of Veterans' Appeals (Board) from March 2006, April 2008, and July 2008 rating decisions. In October 2012, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in Houston, Texas. A transcript of the hearing is of record. A September 2010 Decision Review Officer decision increased the rating from 0 percent to 30 percent for the Veteran's asbestosis, effective March 31, 2006. However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to a waiver of the payment of VA medical bills has been raised by the record, specifically by the Veteran's April 2012 statement. This issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In the April 1999 rating decision, the RO denied the Veteran's claim of service connection for an inguinal hernia, on the bases that the evidence showed that the inguinal hernia existed prior to service and there was no evidence that the condition permanently worsened as a result of service. 2. Because the Veteran did not appeal the April 1999 rating decision after being notified of his appellate rights, that decision is final. 3. Evidence received subsequent to the April 1999 rating decision is either duplicative or cumulative of evidence already considered or does not relate to an unestablished fact necessary to substantiate the claim. 4. The preponderance of the evidence weighs against a finding that the Veteran's prostate disability, to include ED and BPH, was caused or aggravated by his service-connected asbestosis. 5. Prior to March 31, 2006, the Veteran's left ear hearing loss does not warrant a compensable disability rating under the applicable rating criteria. 6. Since March 31, 2006, the Veteran's bilateral hearing loss has not warranted an initial compensable disability rating under the applicable rating criteria. 7. The Veteran's service-connected asbestosis manifests in, at worst FEV/Forced Vital Capacity (FVC) of 67 percent, and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 61 percent predicted. CONCLUSIONS OF LAW 1. The April 1999 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has not been presented, and the claim of entitlement to service connection for a hernia, is not reopened. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.302, 20.1103 (2012). 3. A prostate disability, to include ED and BPH, was not caused or aggravated by service-connected asbestosis. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). 4. The criteria for a compensable rating prior to March 31, 2006 for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012). 5. The criteria for an initial compensable rating for bilateral hearing loss since March 31, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, DC 6100 (2012). 6. The criteria for a compensable evaluation for hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.96, 4.97, DC 6833 (2006), 4.1-4.14, 4.96, 4.97, DC 6833 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked items of evidence not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 12 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. New and Material Evidence The Veteran's current claim involving service connection for a hernia is grounded upon the same factual bases as his previous claim, which was last denied by the RO in the April 1999 rating decision. That decision is final. Generally, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim rather than an original claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008); see also Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new etiological theory does not constitute a new claim). In Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996), it was determined that the statutory scheme in 38 U.S.C.A. §§ 5108, 7104 establishes a legal duty for the Board to consider the issue of new and material evidence regardless of the RO's determination as to that issue. The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. The Veteran filed his application to reopen his previously denied claim for a hernia in March 2006. Under the applicable version of 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156 (c). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In the April 1999 rating decision, the RO denied the Veteran's claim for service connection of an inguinal hernia, on the bases that the evidence showed that the evidence showed that inguinal hernia existed prior to service and there was no evidence that the condition permanently worsened as a result of service. The RO noted that the July 1951 enlistment examination indicated an inguinal hernia in the scrotum, but that there were no service medical records of treatment for that condition. The Veteran received notification of that decision and his appellate rights in May 1999, but did not appeal the decision. Thus, the April 1999 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence of record at the time of the April 1999 rating decision included the Veteran's DD Form 214, service treatment records (STRs); hospital treatment records from the United States Public Health Service hospital from September and December 1971; an excerpt of a decision from the Social Security Administration (SSA) dated January 1972; a December 1971 letter from the Veteran's treating physician to the SSA regarding treatment of a back disability; and VA treatment records. Since the April 1999 rating decision, a voluminous amount of evidence has been associated with the record, to include additional written statements from the Veteran, post-service treatment records, and the October 2012 Travel Board hearing transcript. Significantly, the additional evidence includes the report of an August 2010 VA digestive conditions examination in which the examiner noted that a left inguinal hernia was noted on the Veteran's 1951 enlistment examination and that he had undergone a herniorrhaphy, but he denied any recurrence since that time. No right inguinal hernia was noted on VA examination. Accordingly, the examiner opined that the Veteran's inguinal hernia was not permanently aggravated by his service. The August 2010 VA examination is negative evidence against the Veteran's claim and cannot constitute new and material evidence to reopen the claim. The Board notes that the Veteran testified that an inguinal hernia was noted on enlistment examination and confirmed that he had the hernia prior to service, but did not require treatment during service and denied any recurrence of the hernia. However, the Veteran's testimony and additional statements in support of his claim are essentially cumulative of others that were previously of record. The Board finds that the Veteran's testimony and lay statements in support of his claim, while presumed credible, are not new and material and do not raise a reasonable possibility of substantiating this claim. He is simply repeated his prior claims. Thus, upon consideration of the additional evidence discussed above, we find that new and material evidence has not been presented since the April 1999 denial. The evidence shows that the Veteran does not currently have a hernia and does not show that any hernia was aggravated by his service. Accordingly, because the Board has determined that new and material evidence has not been presented sufficient to reopen the Veteran's previously denied claim of service-connected compensation benefits, the appeal is denied. In so finding, the Board notes that it necessarily follows that no new and material evidence pertinent to the current application to reopen was received prior to the expiration of the appeal period for the April 1999 decision such that the provisions of 38 C.F.R. § 3.156(b) would apply. The Board also notes that no relevant service department records have been associated with the claims file since the April 1999 rating decision such that 38 C.F.R. § 3.156(c) would apply. On a final note, the Board notes that the Veteran has continued to petition VA to obtain additional VA treatment records for treatment of a hernia from 1969 to present and to obtain private treatment records dated December 1950, prior to his service. However, these records would not provide a basis to grant this claim. At the time of the April 1999 rating decision, the evidence of record showed that the Veteran had a hernia condition prior to his service (thus, these records from 63 years ago, even if they could be located, would only show what the Board knows: the Veteran had a hernia prior to service). With regard to hernia treatment after the Veteran's service, the Veteran does not contend that these records in any way show that he had a hernia disability that was aggravated by his service. In fact, the recent VA examination does not even show that the Veteran currently has a hernia. Nonetheless, the possibility that records exist that indicate further hernia treatment after service would not be sufficient to trigger VA's duty to assist, especially in light of the fact that on VA examination he was not shown to have a hernia disability and the Veteran denied having a hernia at the October 2012 hearing. See Shade, 24 Vet. App. at 118. II. Service Connection The Veteran seeks entitlement to service connection for a prostate disability, including ED, on the bases that it is secondary to his service-connected asbestosis. He advances no other theory for entitlement, nor is any other theory reasonably raised by the record. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (stating that VA has a duty to develop and adjudicate a claim only as to those theories of entitlement raised by the Veteran or reasonably raised by the record, but does not have a duty to develop and adjudicate a claim as to every possible or conceivable theory of entitlement). Service connection may be granted for disability which is proximately due to or aggravated by service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). During the pendency of this claim and appeal, an amendment was made to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, supra, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of secondary service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. The present case appears to predate the regulatory change. Consequently, the Board will apply the prior version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board notes that there is medical evidence showing that the Veteran currently suffers from ED and BPH, as noted on VA genitourinary examination in August 2010. However, a preponderance of the evidence weighs against finding that the Veteran's current ED and BPH are related to his service-connected asbestosis, as he contends. Indeed, on VA examination in August 2010, the examiner opined that the Veteran's ED and BPH are not caused by or a result asbestos exposure and/or his service-connected asbestosis. At that time, the Veteran presented with reports of BPH since "many years" and a ten-year history of ED (well after service and exposure to asbestos). The examiner recounted the Veteran's medical history as relevant to his claimed ED and BPH and ultimately concluded that the Veteran's ED and BPH were not caused by or a result asbestos exposure and/or his service-connected asbestosis. The examiner stated that the Veteran had a history of BPH without obstruction and explained that BPH is a condition of aging. The examiner stated that nearly all men over the age of 50 have an enlarged prostate; the Veteran is 83 years old. The examiner stated that the prostate grows larger due to an increase in the number of cells (hyperplasia). However, the precise reason for this increase is unknown. A variety of factors may be involved, including androgens (male hormones), estrogens, growth factors, and other cell signaling pathways. As regards ED, the examiner acknowledged the Veteran's ten-year history of ED and history of hypertension, CAD, and hyperlipidemia and stated that BPH and medication to treat BPH can cause ED. During the October 2012 Travel Board hearing, the Veteran testified that his genitourinary problems mostly started after service. He also testified that his ED may be due to surgery for his nonservice-connected back and hernia. The Board notes that the VA medical examiner based the conclusion on review of the record, as well as interview and examination of the Veteran. The examiner also provided adequate rationale for the conclusion. For these reasons, the Board affords the examiner's opinion great probative value. The Board recognizes that while the Veteran has alleged that his ED and BPH are related to his service-connected asbestosis, he testified that the disabilities may be related to nonservice-connected disabilities. In summary, while there is ample evidence of current ED and BPH, the competent and probative medical opinion evidence shows no relationship between the Veteran's ED and BPH and his service-connected asbestosis, on either a causation or aggravation basis. Furthermore, the Veteran lacks the medical expertise to render a competent medical opinion regarding such matters, and his assertions of a correlation between his genitourinary disabilities and asbestosis are not deemed credible in light of the inconsistencies shown in the record. Therefore, for the foregoing reasons, we find that the preponderance of the evidence weighs against the Veteran's claim, and service connection for a prostate disability, to include ED and BPH, secondary to service-connected asbestosis, is not warranted. III. Increased Ratings - Asbestosis By rating decision dated June 2002, the RO granted service connection for asbestosis and assigned a 0 percent disability rating, effective June 21, 2001. The Veteran filed his claim for an increased rating for asbestosis in March 2006. By rating action dated July 2008, the RO continued the noncompensable rating. A September 2010 DRO decision increased the rating from 0 percent to 30 percent for the Veteran's asbestosis, effective March 31, 2006. The Veteran's asbestosis is rated under Diagnostic Code (DC) 6833 for asbestosis. Under this DC, a 30 percent rating is warranted for FVC of 65 to 74 percent predicted, or a DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation requires FVC of 50 to 64 percent predicted, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent evaluation requires demonstrated evidence of FVC of less than 50 percent of predicted value, or; DLCO (SB) of less than 40 percent of predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiac or respiratory limitation, or; cor pulmonale (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6833. The rating criteria contemplate PFT results post-therapy, which is the standard basis for comparison of pulmonary function. See 38 C.F.R. § 4.96(d)(5). The Board also notes that when VA amended the Rating Schedule concerning respiratory conditions, effective from October 6, 2006. VA added provisions that clarify the use of PFTs in evaluating respiratory conditions. A new paragraph (d) to 38 C.F.R. § 4.96, is titled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845." In pertinent part, this regulation states that post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). As the claim was submitted prior to the effective date of the amendment to 38 C.F.R. § 4.96, the Board will use both pre-bronchodilator and post-bronchodilator results when evaluating the Veteran's PFTs, whichever is more favorable. On VA examination in October 2007, the Veteran denied any history of hospitalization, trauma to the respiratory system, pneumothorax, emphysema, asthma, cough, hemoptysis, wheezing, dyspnea, anorexia, chest pain, swelling, respiratory failure, fever, or periods of incapacitation, providing evidence against this claim. On examination, there was no venous congestion or edema, abnormal respiratory findings, diaphragm excursion, chest expansion, chest wall scarring, deformity of the chest wall, conditions associated with pulmonary restrictive disease, significant weight loss or malnutrition, pulmonary hypertension, or RVH. On X-ray examination of the chest in August 2007, the impression was no active cardiopulmonary disease. The Veteran was diagnosed with asbestosis. An October 2007 PFT revealed a pre-bronchodilator FVC of 67 percent predicted and DLCO (SB) of 61 percent predicted; post-bronchodilator readings were not obtained. On VA respiratory diseases examination in March 2010, the examiner noted that a September 2009 chest X-ray was normal. A PFT revealed a pre-bronchodilator of FVC of 87 percent and a DLCO of 71 percent. After reviewing the evidence of record, the Board finds that at no time has the Veteran's asbestosis warranted a rating in excess of 30 percent. None of the VA examinations afforded to the Veteran over the course of his appeal has reflected FVC of 50 to 64 percent predicted, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. Accordingly, a rating in excess of 30 percent for the Veteran's service-connected asbestosis is not warranted at any time during the pendency of the appeal. The Board has also looked at other diagnostic codes for rating the Veteran's bronchitis with asthmatic attacks. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this regard, there are no other diagnostic codes, reviewed by the Board, that would afford the Veteran a higher than 30 percent rating for his service-connected asbestosis. In addition, the Board has reviewed the Veteran's VA outpatient treatment reports and finds no additional evidence favorable to his claim for a higher evaluation. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating in excess of that discussed above. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in arriving at the determinations above the Board has considered not only the medical evidence but also the lay evidence presented by the Veteran in the form of his correspondence to VA, the testimony by the Veteran before the Board, and statements made during VA examinations. As a layperson, the Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording this lay evidence full competence and credibility, such lay evidence does not support a schedular rating higher than that currently awarded for the Veteran's asbestosis at any time during the pendency of this appeal. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990);38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Hearing loss The basis for evaluating defective hearing is the impairment of auditory acuity as measured by puretone threshold averages within the range of 1000 to 4000 Hertz and speech discrimination using the Maryland CNC word recognition test. 38 C.F.R. § 4.85. Puretone threshold averages are derived by dividing the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz by four. Id. The puretone threshold averages and the Maryland CNC test scores are given a numeric designation which is then used to determine the current level of disability based upon a pre-designated schedule. See Tables VI and VII in 38 C.F.R. § 4.85. Under these criteria, the assignment of a disability rating is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII (of 38 C.F.R. § 4.85), the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The provisions of 38 C.F.R. § 3.383 allow special consideration for paired organs and extremities of service-connected and nonservice-connected origin. Under 38 C.F.R. § 3.383(a)(3), hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability that meets the provisions of § 3.385 in the other ear. Under VA regulations, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. By rating decision dated November 1971, the RO granted service connection for left ear hearing loss and assigned an initial noncompensable rating effective June 11, 1971. The Veteran filed his claim for an increased rating for left ear hearing loss in August 2005. By rating action dated March 2006, the RO continued the noncompensable rating. In March 2006, the Veteran filed a claim for service connection for right ear hearing loss. By rating action dated July 2008, the RO granted service connection and awarded an initial noncompensable rating effective March 31, 2006. Thus, the Board has two separate issues for consideration at this time: 1) entitlement to a compensable rating for left ear hearing loss prior to March 31, 2006; and 2) entitlement to an initial compensable rating for bilateral hearing loss since March 31, 2006. Time period prior to March 31, 2006 The Veteran was afforded a VA audiology examination in November 2005 at which time he indicated that he always had difficulty hearing whispering and hearing the radio and television; his hearing disability negatively impacted his personal and social life. Audiometric examination demonstrated left ear puretone thresholds at 500, 1000, 2000, 3000, and 4000Hertz were 80, 90, 60, 60, and 65 decibels at 500, 1000, 2000, 3000 and 4000 hertz, respectively, for an average over the four frequencies of interest of 69 decibels. These findings demonstrate an exceptional pattern of hearing impairment. Using Table VIA in 38 C.F.R. § 4.85, the Veteran's left ear, which had a puretone average of 69, receives a designation of V. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I. Application of the levels of hearing impairment to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating. After reviewing the evidence of record, the Board finds that at no time prior to March 31, 2006, has the Veteran's left ear hearing loss warranted a compensable rating. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than the assigned rating. Since March 31, 2006 The Veteran was afforded with a VA audiology examination in July 2007, at which time an audiometric examination demonstrated pure tone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz of 75, 95, 65, 60, and 70 decibels, respectively, for an average over the four frequencies of interest of 73 decibels. Test results of pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz of 30, 40, 30, 50, and 65 decibels, respectively, for an average over the four frequencies of interest of 46 decibels. Speech audiometry revealed speech recognition ability of 98 in the right ear and of 88 in the left ear. These results show that the Veteran has exceptional hearing loss in the left ear as contemplated in 38 C.F.R. § 4.86. Using Table VIA in 38 C.F.R. § 4.85, the Veteran's left ear, which had a puretone average of 73, receives a designation of VI. Application of 38 C.F.R. § 4.85 Table VI to the right ear results in assignment of Roman Numeral I to the right ear for the purpose of determining a disability rating. Application of the levels of hearing impairment to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating. A September 2007 repot shows that he has had a gradual worsening of his hearing. November 2008 VA hearing aid assessment and training report shows that he was fitted for right-sided hearing aid. On VA audiology examination in May 2010, audiometric examination demonstrated pure tone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz of 75, 95, 70, 70, and 80 decibels, respectively, for an average over the four frequencies of interest of 79 decibels. Test results of pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz were 25, 40, 45, 55, and 70 decibels, respectively, for an average over the four frequencies of interest of 53 decibels. Speech audiometry revealed speech recognition ability of 94 in the right ear and of 84 in the left ear. These results show that the Veteran has exceptional hearing loss in the left ear as contemplated in 38 C.F.R. § 4.86. Using Table VIA in 38 C.F.R. § 4.85, the Veteran's left ear, which had a puretone average of 79, receives a designation of VII. Application of 38 C.F.R. § 4.85 Table VI to the right ear results in assignment of Roman Numeral I to the right ear for the purpose of determining a disability rating. Application of the levels of hearing impairment to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the Veteran's disability warranted a higher rating in excess of that discussed above. Hart, supra. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in arriving at the determinations above the Board has considered not only the medical evidence but also the lay evidence presented by the Veteran in the form of his correspondence to VA, he testimony by the Veteran before the Board, and statements made during VA examinations. As a layperson, the Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording this lay evidence full competence and credibility, such lay evidence does not support a schedular rating higher than that currently awarded for the Veteran's left ear hearing loss prior to March 31, 2006, or bilateral hearing loss since March 31, 2006. In sum, the Board finds that the preponderance of the evidence is against the claims of 1) entitlement to a compensable rating for left ear hearing loss prior to March 31, 2006; and 2) entitlement to an initial compensable rating for bilateral hearing loss since March 31, 2006. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990);38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). As such, the claims must be denied. Extraschedular Consideration The Board must still consider whether the Veteran is entitled to extra-schedular ratings under the provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. 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. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the disability picture presented by the Veteran's left ear hearing loss prior to March 31, 2006; bilateral hearing loss since March 31, 2006; and asbestosis is appropriately contemplated by the rating schedule is appropriately contemplated by the rating schedule. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. The Duty to Notify and the Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate 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. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes 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. Principi, 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). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and to establish entitlement to the underlying claim for the benefit sought by the claimant. The claimant must also be notified of what constitutes both "new" and "material" evidence to reopen the previously denied claim. The Court further held that, in the context of a claim to reopen, VA look at the bases for the denial in the prior decision and describe what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Prejudicial error in VCAA notice has neither been alleged nor shown in this case, as will be explained below. The record reflects that the Veteran was provided all required notice by letters mailed in November 2005, March 2006, and September 2007, prior to and after the initial adjudication of the claims. Although the Veteran was not provided complete notice with respect to his claim for an increased rating for left ear hearing loss until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Additionally, Kent notice requirements were satisfied by way of the February 2008 notice letter with respect to the claim. The applicable definition of new and material evidence was provided to the Veteran and he was told to present evidence of a worsening of a preexisting condition in order to establish service connection by aggravation. The Board also finds the Veteran has been afforded adequate assistance in regard to the claims. Service treatment records (STRs), pertinent post-service medical records have been obtained. While it appears that the Veteran is apparently in receipt of SSA disability benefits for a back disability and/or age, since the Board has no information that relevant SSA records exist, and none contended, there is no duty to assist in obtaining these types of records. See generally Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). With regard to the Veteran's new and material evidence claim, the record reflects that the Veteran has requested that the RO obtain private treatment records from University Hospital (formerly Hillman Hospital) for treatment of a hernia in 1950. Per the Veteran's request, the RO did attempt to obtain records from Carraway Burdick West hospital for the period from November 1950 to July 1951 via letters dated September 2008 and October 2008 and via telephone contact with the provider in November 2008. However, the hospital indicated that Carraway Burdick West hospital was not built until 1969 and merged with three other hospitals. In March 2009, the RO contacted the Veteran and asked him to supply the name of the hospital where he was treated during that time, but he could not remember the name of the hospital. In this regard, the Board notes that there is no indication that additional evidence from 1950 exists. While the Board has considered whether it should make another attempt to obtain these records, there is simply no indication that such records from 62 years ago exist or (for the reasons noted above) they would provide a basis to grant the Veteran's claim. The Board finds that the RO has exhausted all efforts to obtain these records. Any further attempts to locate these records would be futile. The Veteran has also requested VA treatment records dating from January 1969 to the present. However, as previously stated, the mere possibility that records exist that indicate further hernia treatment after service would not be sufficient to trigger VA's duty to assist, especially in light of the fact that the Veteran does not currently have a hernia or has identified any records or any opinion within those records which shows that he has a hernia that was aggravated by his service. See Shade, 24 Vet. App. at 118. Treatment records for a hernia well after service would not provide a basis to grant this claim in light of the facts cited above. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Veteran has been afforded appropriate VA examinations with regard to his claim for an increased rating for hearing loss in November 2005, July 2007, and May 2010. Notably, the July 2007 and May 2010 VA audiologists did not fully address the functional effects caused by the Veteran's bilateral hearing loss. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, this issue was extensively addressed in a VA audiology examination conducted in November 2005. The Board additional notes that the Veteran has been provided ample opportunity to provide evidence and/or argument on this particular issue. With regard to his claim for an increased rating for asbestosis, the Veteran was afforded examinations in June 2007 and March 2010. These examination reports provide all findings necessary to decide this claim. The Board acknowledges that the reports of examination only reported pre-bronchodilator findings. As these findings are known to be greater than the medicated post-bronchodilator findings, the Board finds that no prejudice has accrued to the Veteran by failing to obtain post-bronchodilator findings. With regard to his claim for service connection for a prostate disability, to include ED and BPH, secondary to service-connected asbestosis, it is noted that the RO provided a VA examination in August 2010 at which time the VA examiner opined that the Veteran's ED and BPH were not caused by or a result of asbestos exposure and/or his service-connected asbestosis. However, the examiner did not provide an opinion regarding whether the Veteran's disabilities had been aggravated by his service-connected asbestosis. In this regard, the Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). However, there is nothing in the record that indicates a connection between the Veteran's ED and BPH other than the Veteran's lay statements. The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 20100, the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement, as in this case, suggesting a nexus between a current disability and another disability would not suffice to meet the standards as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's claimed disabilities are related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative evidence. There is absolutely no indication of aggravation in this record; the post-service medical records only provide more evidence against the claim indicating no connection between the Veteran's ED, BPH, and service-connected asbestosis. The August 2010 VA opinion, while imperfect, provides only further evidence against this claim. In sum, the duties to notify and assist have been satisfied. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER New and material evidence has not been presented, and the claim of entitlement to service connection for a hernia, is not reopened. The appeal is denied. Entitlement to service connection for a prostate disability, to include ED and BPH, claimed as secondary to service-connected asbestosis, is denied. Entitlement to a compensable rating for left ear hearing loss prior to March 31, 2006 is denied. Entitlement to an initial compensable rating for bilateral hearing loss since March 31, 2006 is denied. Entitlement to a rating in excess of 30 percent for asbestosis is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs