Citation Nr: 1300923	
Decision Date: 01/09/13    Archive Date: 01/16/13

DOCKET NO.  10-23 794	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for headaches. 

2.  Entitlement to service connection for a disability manifested by painful feet. 

3.  Entitlement to an initial compensable disability evaluation for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from August 1952 to August 1954.  He is a recipient of the Combat Medical Badge. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

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).

The Veteran provided testimony at a video conference hearing before the undersigned in January 2012.  A written transcript of this hearing has been associated with the Veteran's VA claims folder.

This case was previously before the Board in April 2012, at which time the Board remanded the current appellate claims for further development to include VA medical examinations to address the nature and etiology of the claimed headache and feet disorders, as well as the current symptomatology of the service-connected hearing loss.  Such examinations were accomplished in April and May 2012, and for the reasons detailed below the Board finds they are adequate for resolution of the headache and hearing loss claims.  All other development directed by the Board's remand appears to have been substantially accomplished.  Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998).  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

As an additional matter, the Board notes that in April 2012 it found that service connection was warranted for posttraumatic stress disorder (PTSD), and this decision was effectuated by a subsequent April 2012 rating decision.  Nothing in the records assembled for the Board's review reflects that the Veteran has expressed disagreement with either the initial rating assigned for the PTSD or the effective date thereof.  In view of the foregoing, this issue has been resolved and is not on appeal before the Board.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).

The issue of entitlement to service connection for a disability manifested by painful feet is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The preponderance of the competent and credible medical and other evidence of record is against a finding that the Veteran currently has a chronic headache disorder that was incurred in, aggravated by, or otherwise the result of his active service.

2.  The competent audiological evaluations do not show an exceptional pattern of hearing loss to include the pure tone threshold of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) being 55 decibels or more, nor is the average pure tone threshold for either ear shown to be 30 decibels at 1000 Hertz, and 70 decibels or more at 2000 Hertz.

3.  Competent audiological evaluation conducted in May 2009 revealed Level I hearing for the right ear, and Level III for the left ear.

4.  Competent audiological evaluation conducted in May 2012 revealed Level II hearing for the right ear, and Level I hearing for the left ear.


CONCLUSIONS OF LAW

1.  Service connection is not warranted for headaches.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012).

2.  The criteria for a compensable rating for the Veteran's service-connected bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.85, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

With respect to the Veteran's hearing loss claim, the Board observes that this appeal arises from a disagreement with the initial rating assigned following the establishment of service connection.  In Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Thus, VA's duty to notify in this case is satisfied.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).

Regarding the service connection claim that is on appeal, the Court has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  In this case, the Veteran was sent pre-adjudication notice via letters dated in May and June 2008, both of which were clearly prior to the May 2009 rating decision that is the subject of this appeal.  In pertinent part, these letters informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, and what information and evidence will be obtained by VA.  As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra.  Moreover, the Veteran was provided with the information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess, supra.

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied.  

The Board acknowledges that the Veteran's service treatment records are unavailable, and all efforts to obtain these records have been unsuccessful.  In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule.  See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease).  The Veteran was notified of the missing service records in the May 2008 VCAA letter.  

Various other records were obtained and considered in conjunction with this case.  Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the January 2012 Board hearing.  As noted in the April 2012 Board remand, the Veteran identified relevant treatment at Copley Memorial Hospital, and the Board remanded this case, in part, to obtain any such records.  However, the Veteran subsequently reported that he called this Hospital and they informed him that they did not have any of his records as they had no records on file from the 1950s.  VA has no obligation to seek evidence which the claimant acknowledges does not exist.  See Counts v. Brown, 6 Vet. App. 473 (1994).  Nothing indicates the Veteran has identified the existence of any other relevant evidence that has not been obtained or requested.  For example, he has not identified any outstanding evidence showing he has a chronic headache disorder that is etiologically linked to his active service.  The record further reflects that in regard to treatment the Veteran identified in association with Dr. O.S., requests for such records were mailed in July 2008 and August 2008 to which no response was provided.  The Veteran was advised that records were requested for a second time from Dr. O.S. in an August 2008 letter, and the Veteran was notified that he was ultimately responsible for obtaining the records.  Dr. O.S. was given an additional 30 days to comply with the request.  It is clear from the content of the August 2008 letter that no further attempts would be made on the part of the RO in obtaining the records such that 38 C.F.R. § 3.159(e) was satisfied.  

The Board further notes that the Veteran was accorded VA medical examinations regarding this case in May 2009, April 2012 and May 2012.  In pertinent part, examinations conducted in May 2009 and May 2012 evaluated the Veteran's hearing loss pursuant to the relevant rating criteria and in accord with the requirements of 38 C.F.R. § 4.85(a).  Further, the 2012 examination included comments regarding the functional impact of the Veteran's hearing loss on his occupation as required by Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The other examination conducted in April 2012 included an opinion that addressed the etiology of the claimed headache disorder.  As this opinion was based upon a medical evaluation of the Veteran, history elicited from the Veteran, and a review of his VA claims folder, the Board finds it is supported by an adequate foundation.  No competent medical evidence is of record that specifically refutes the findings of the April 2012 VA examination on this issue.  Moreover, no prejudice or inaccuracies has been identified with regard to any of these examinations, and the Veteran has not indicated that his hearing loss has increased in severity since the most recent examination.  Accordingly, the Board finds that these examinations are adequate for resolution of this case.  

In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

I.  Service Connection

General Legal Criteria

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  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, 1377 (Fed. Cir. 2007).

Analysis

The Veteran essentially contends that his current symptomatology of headaches began during his active military service.  He has also asserted that he suffered from chronic symptomatology since his separation from active duty.  His spouse has also provided statements and testimony in support of his contentions.  Such complaints of pain are within the ability of a lay person to observe.  For purposes of the remand only, the Board noted that the record did not presently contain any evidence to call into question the credibility of the Veteran's testimony.  As discussed in further detail below, evidence since added to the record indicates that the Veteran's recollection of events in service and since service is unreliable and the same holds true for the Veteran's spouse.  

Despite the foregoing, the Board finds that while the Veteran is capable of describing his visible symptomatology of pain, here, competent medical evidence is required to determine whether such complaints are the result of a chronic disability and the nature of such disability.  This is consistent with the fact that the Court has held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom.  Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  The Veteran's service treatment records are unavailable, there is no competent medical evidence of the current disability until decades after service, and the Veteran's statements in regard to symptoms in service and symptoms after service are unreliable.  Therefore, the Board finds that competent medical evidence is required to determine whether such current disability is etiologically linked to service.  

The Board has already noted that the Veteran is the recipient of the Combat Medical Badge, and other records showed he served in the Medical Corps and completed a medical aid course.  This background must also be taken into account when evaluating his own opinion regarding the etiology of his headaches.  See Goss v. Brown, 9 Vet. App. 109, 114-15 (1996); YT v. Brown, 9 Vet. App. 195, 201 (1996); and Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (All of which generally stand for the proposition that any health care professional is qualified to render a medical opinion.).  Nevertheless, in evaluating the probative value of his medical statements, the Board may look at factors such as the individual knowledge and skill in analyzing the medical data.  See Black v. Brown, 10 Vet. App. 297, 284 (1997).  The Board may also take the veteran's self-interest into account in assessing the weight to be accorded to his self-assessment.  See Pond v. West, 12 Vet, App. 341, 345 (1999) (Although the Board must take a physician-veteran's opinions into consideration, it may consider whether self-interest may be a factor in making such statements, even if the veteran himself is a health care professional); see also Cartright v. Derwinski, 2 Vet. App. 24, 25   (1991) (The Board may consider self interest in evaluating the testimony of claimants).  Here, the Board notes that the Veteran's background of having served in the Medical Corps does not indicate specific expertise in diagnosing or determining the etiology of the type of disability that is the subject of this appeal.  Conversely, it is presumed that the VA examiner charged with conducting the examination has the requisite expertise to provide an opinion on the disability at issue.  Thus, the VA examiner's opinion outweighs the Veteran's opinion and self-interest.  

In regard to the supporting statements and testimony from the Veteran's spouse, nothing on file shows that she has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, her contentions cannot constitute competent medical evidence.  38 C.F.R. § 3.159(a)(1).  

The Board acknowledges that the Veteran's contentions regarding his symptomatology can support a later diagnosis and opinion by a medical professional.  See Jandreau, supra.  In this case, the only such evidence appears to be that of the April 2012 VA examination, and the Board has already determined that this examination and the opinion expressed therein are adequate for resolution of this case.  The April 2012 VA examination report notes that the Veteran reported that he had a spinal tap done sometime about a year after he was discharged from the military but he could not say why that was done.  He indicated that it must have worked because he never had to go back.  In regard to the claimed headache disability, the examiner found it was not related to service.  The examiner noted that the Veteran indicated that he did not have sinus problems or headaches in the military.  He reported that he could not remember when he started having headaches, except it was many years ago.  The examiner observed that the Veteran had not had treatment for headaches according to his claims file expect for treatment in 2001.  The examiner indicated that the Veteran did not associate the headaches with his spinal tap.  The examiner maintained that since the Veteran had complained of frontal headaches and he had had problems with his sinuses documented since 2009, but probable pre-dating that by a few years, but not while in the military according to the Veteran, it was most likely that the Veteran's headaches as described on the exam were the result of nasal polyposis.  Also, as the Veteran denied a problem with sinuses or nasal polyps while in the military, it was less likely as not that the current headaches were related to his military service or his spinal tap.  

The Board finds that the history the Veteran provided at the VA examination concerning the onset of his headache disability and symptoms experienced since service is inconsistent to testimony the Veteran provided at the hearing during which time he maintained that he experienced headaches in service and had experienced headaches ever since such service.  A summary of the VA examiner's findings were contained in the October 2012 supplemental statement of the case.  There has been no indication from the Veteran that the examination report is not an accurate reflection of what was reported by him.  The Board observes that the medical evidence of record is more consistent with the findings of the VA examiner which does not show complaints of chronic headaches stemming from an in-service event or a spinal tap.  In 2001, the headaches were associated with excessive caffeine use.  At the hearing, the Veteran reported that he continued to experience headaches, and that he was diagnosed with a condition of polyps in his "head" for which he was regularly prescribed steroids.  No such condition is shown in the medical records.  Rather than polyps in the "head," a polyp of the colon was noted in 2003, and problems with the Veteran's sinuses and nasal polyposis were noted by the VA examiner.  The latter conditions are neither claimed by the Veteran as associated with service nor shown by the medical evidence of record to be associated with service.  Unfortunately, given the inconsistency in the accounts, the Board cannot find the Veteran and his spouse to be reliable historians and therefore, the Veteran's account of the history of his disability cannot constitute credible evidence of continuity of symptomatology of symptoms in service and ever since service.  There is no credible medical evidence that otherwise links a currently diagnosed chronic headache disorder to the Veteran's military service.  While the Veteran may believe that symptoms (severe pain in the head) he experienced in service with a condition that necessitated a spinal tap after service is responsible for any headaches he experienced after service and currently experienced, no such credible link has been established by the evidence of record.  For these reasons, the Board finds that service connection for a headache disability is not warranted.     

In view of the foregoing, the Board finds that the preponderance of the competent and credible medical and other evidence of record is against a finding that the Veteran currently has a chronic headache that was incurred in, aggravated by, or otherwise the result of his active service.  As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Consequently, the benefit sought on appeal with respect to these claims must be denied.






II.  Higher Rating

Legal Criteria

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability.  Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

The veteran's hearing loss disability is rated in accordance with the provisions found at 38 C.F.R. §§ 4.85-4.87.  Current VA rating criteria for the evaluation of hearing loss disability provide ratings from zero (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of pure tone audiometry tests which average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. §§ 4.85-4.87; Diagnostic Codes 6100 to 6110.  The evaluation of hearing impairment applies a rather structured formula which is essentially a mechanical application of the rating schedule to numeric designations after audiology evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

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.  38 C.F.R. § 4.86.  Further, when the average puretone threshold is 30 decibels 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.  Id.

Analysis

In the instant case, and for the reasons stated below, the Board finds that the Veteran does not meet the criteria for a compensable rating for his service-connected bilateral hearing loss.

In his statements and hearing testimony, the Veteran has described his hearing difficulties.  The Board does not doubt the credibility of the Veteran in regard to his account of his own hearing difficulties, as they are clearly within his ability to observe.  However, for the purposes of evaluating a hearing loss disability under the relevant schedular criteria, the focus is upon the results of audiological evaluations conducted in accord with the requirements of 38 C.F.R. § 4.85(a).  In this case, the only such evaluations appear to be that of the VA examinations conducted in May 2009 and May 2012.  Therefore, it appears that only these evaluations are competent evidence for the purpose of determining the appropriate schedular rating.

The May 2009 VA audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
Average
RIGHT
55
50
55
50
50
51.25
LEFT
40
45
40
25
35
36.25

Speech recognition scores were 98 percent for the right ear, and 82 percent for the left ear. 

The May 2012 VA audiological evaluation revealed pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
Average
RIGHT
55
45
50
45
50
48
LEFT
35
35
30
25
30
30

Speech recognition scores were 90 percent for the right ear, and 92 percent for the left ear. 

Initially, the Board observes that the aforementioned competent audiological evaluations do not show an exceptional pattern of hearing loss to include the puretone threshold of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) being 55 decibels or more, nor is the average puretone threshold for either ear shown to be 30 decibels at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  As such, the provisions of 38 C.F.R. § 4.86 are not applicable to this case.

In regard to the provisions of 38 C.F.R. § 4.85, the Board observes that the results of the May 2009 VA audiological examination correspond to Level I hearing for the right ear, and Level III for the left ear under Table VI.  These results, in turn, correspond to the current noncompensable rating under Table VII.  Similarly, the results of the May 2012 VA audiological examination correspond to Level II hearing for the right ear, and Level I hearing for the left ear under Table VI.  These results, in turn, also correspond to a noncompensable rating under Table VII.

For these reasons, the Board finds that the Veteran does not meet the schedular criteria for his service-connected hearing loss.  In making this determination, the Board considered the potential applicability of "staged" rating(s) pursuant to Fenderson, supra.  However, a review of the record did not document any distinctive period(s) where the Veteran met the criteria for a compensable rating.  Therefore, "staged" rating(s) are not warranted in this case.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board finds that the rating criteria contemplate the Veteran's disability in that the purpose of the criteria is to evaluate the level of hearing loss.  The functional effects described by the Veteran at the 2012 exam are not exceptional or unusual features of a hearing loss disability.  The examiner noted that the Veteran's current degree of hearing loss would cause some difficulty with communication particularly in a noisy environment or over the telephone.  Again, this is not an exceptional or unusual feature of a hearing loss disability.  As such, the manifestations described by the Veteran regarding his hearing difficulties are contemplated in the rating criteria.  The rating criteria are therefore adequate to evaluate the Veteran's service-connected hearing loss disability and referral for consideration of extraschedular rating is not warranted.

Lastly, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, however, while the Veteran has described difficulty hearing others, and the May 2012 VA examination noted that the hearing loss would cause some difficulty with communication particularly in a noisy environment or over the telephone, nothing in the record indicates that he is unable to obtain and/or maintain substantially gainful employment due to this service-connected disability to include the Veteran's own contentions.  In fact, the Veteran noted at the May 2012 VA examination that he had worked as a truck driver before retiring 25 years ago, and that his hearing loss did not really impact his job.  Therefore, no further discussion of entitlement to a TDIU is warranted based on the facts of this case.


ORDER

Entitlement to service connection for headaches is denied.

Entitlement to an initial compensable disability evaluation for bilateral hearing loss is denied.


REMAND

The April 2012 VA examination report also shows that the Veteran reported that he experienced foot pain for many years and that he was treated many years ago with inserts and a soft cast.  He indicated that his feet hurt when he was marching and running in basic training but they did not do as much running in Korea.  He indicated that he hurt everywhere, not just his feet.  The examiner diagnosed subluxations of the phalanges bilaterally that were not related to service.  The examiner noted that the Veteran complained of pain in his feet in basic training associated with running, but denied pain after basic and while serving in Korea, and that with no complaints or any treatment of any foot condition from discharge until now, it was less likely than not that the subluxations of his toes were due to his military service and more likely due to idiopathic inflammation or due to injury or such conditions as arthritis.  The examiner referenced research material and reported that progressive subluxation/dislocation of the lesser toes resulting from idiopathic inflammation about one or more of the lesser metatarsophalageal joints was a common cause of metatarsalgia that was frequently unrecognized or misdiagnosed.  

The Board finds that the VA opinion provided needs clarification.  While in the Rationale portion of the opinion the examiner noted that the Veteran "denied pain after basic and while serving in Korea," and that he had "no [complaints] or any treatment of any foot condition from discharge until now," the examiner otherwise acknowledged in the Medical History portion that the Veteran reported that he "didn't do much running in Korea" [which suggests that he still experienced pain although not as much because he did not run as much as he did in basic training] and that he reported that he was "treated many years ago with inserts and a soft cast."  The examiner should reconcile the Rationale findings with the Medical History findings.  In so doing, the examiner should also address the likelihood that subluxation/dislocation of the lesser toes resulting from idiopathic inflammation which she described as "progressive" in nature had its onset during the Veteran's basic training/Korean service. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The AMC/RO should return the April 2012 examination report and the claims file to the conducting VA examiner (or a suitable substitute if that examiner is unavailable) for a clarification of opinion on whether the Veteran's bilateral foot disability is at least as likely as not (50 percent or better probability) related to his military service.

In this regard, the Board observes that while in the Rationale portion of the opinion the examiner noted that the Veteran "denied pain after basic and while serving in Korea," and that he had "no [complaints] or any treatment of any foot condition from discharge until now," the examiner otherwise acknowledged in the Medical History portion that the Veteran reported that he "didn't do much running in Korea" [which suggests that he still experienced pain although not as much because he did not run as much as he did in basic training] and that he reported that he was "treated many years ago with inserts and a soft cast."  The examiner should reconcile the Rationale findings with the Medical History findings.  In so doing, the examiner should also address the likelihood that subluxation/dislocation of the lesser toes resulting from idiopathic inflammation which she described as "progressive" in nature had its onset during the Veteran's basic training/Korean service. 

The rationale for any opinion offered should be provided.  If the examiner is unable to render an opinion without a resort to speculation, then the examiner must explain why this is so.

A new VA examination is not warranted unless deemed so by the examiner.  If the examiner who drafted the April 2012 opinion is unavailable, and another examiner is unable to complete the addendum without conducting a new examination, then a new examination for the Veteran's bilateral foot disability should be provided.

2.  Thereafter, readjudicate the claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs