Citation Nr: 1303133	
Decision Date: 01/30/13    Archive Date: 02/05/13

DOCKET NO.  08-28 689	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for left leg disorder.

2.  Entitlement to an initial compensable disability rating for bilateral hearing loss.

3.  Entitlement to service connection for erectile dysfunction, to include as secondary to service connected diabetes mellitus.

4.  Entitlement to initial disability ratings greater than 10 percent for peripheral neuropathy of the bilateral upper and lower extremities.


REPRESENTATION

Appellant represented by:	Veterans of the Vietnam War, Inc.


ATTORNEY FOR THE BOARD

Tabitha G. Macko, Counsel


INTRODUCTION

The Veteran had active service from October 1967 to October 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2007, October 2007 and July 2008 RO rating decisions that, in pertinent part, granted service connection and a noncompensable rating for bilateral hearing loss and denied service connection for a leg pain disorder.   

These claims were previously before the Board and were remanded for further development in June 2011.  As a review of the record reflects that there has been substantial compliance of the Board's June 2011 remand directives with regard to the disability evaluation for bilateral hearing loss appeal and the service connection for a left leg disorder appeal, no further action is required for compliance.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of service connection for coronary artery disease has been raised by the record (see July 2006 claim), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issues of service connection for erectile dysfunction and entitlement to initial disability ratings greater than 10 percent for peripheral neuropathy of the bilateral upper and lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.

FINDINGS OF FACT

1.  The Veteran's current left knee disorder, identified as osteoarthritis, and current left hip disorder, identified as gout, did not manifest in service or for more than three decades thereafter, and the preponderance of the competent evidence is against a finding that the currently diagnosed disorders are related to the Veteran's active service, including in-service treatment for a twisted left knee complaint. 

2.  The Veteran's service-connected bilateral hearing loss is manifested at worse by auditory acuity Level III in the right ear and auditory acuity Level II in the left ear. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for left leg disorder are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).

2.  The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

1.  VA's Duty to Notify and Assist 

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

For the claim of service connection, the duty to notify was satisfied through a February 2008 letter to the Veteran.  The appeal for the rating for hearing loss arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for the right hip.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  No additional discussion of the duty to notify is therefore required. 

VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection.  VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include: the Veteran's service treatment records; post-service VA treatment records; VA examination reports, and private treatment reports. 

VA provided the Veteran with audiological examinations in July 2007, May 2008, and July 2011, and an examination regarding the left leg (hip and knee) in July 2011.  The examiner reviewed the medical evidence in the claims folder, recorded the Veteran's reported medical history regarding each claimed disorder and recorded the clinical findings from examination.  The examiner then addressed the questions of whether any of the Veteran's current diagnosed disorders were in any way related to his period of service.  As well, the Board finds that the audiological examinations sufficiently considered the Veteran's reports of the functional effects of the bilateral hearing loss.  The Veteran's representative has contended that the Veteran should be afforded new examinations; however the Board finds that the Veteran's subjective complaints were recorded by the examiners and considered, that the VA examiner was not obliged to find the Veteran "competent" to report complaints, as that is a legal determination within the purview of the Board itself, and that the examinations for the left leg and the severity of the bilateral hearing loss disability were sufficient.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).

The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

For the foregoing reasons, the Board therefore finds that VA has satisfied its duties to notify and assist.  

2.  Service Connection 

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology.  See Barr v. Nicholson, 21 Vet.App. 303 (2007).  Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms.  Savage v. Gober, 10 Vet.App. 488 (1997).  

In addition, certain chronic diseases, including arthritis, may be presumed to have incurred during service if they become manifested to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 
38 C.F.R. §§ 3.307, 3.309.

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001);  38 C.F.R. § 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.

The Veteran seeks entitlement to service connection for a left leg disorder.  In the November 2006 statement he reported leg pain and in the September 2008 statement he reported experiencing current pain in the left hip and knee joints, which he related to his leg injury in Vietnam.  He asserts that his left leg pain and currently diagnosed left leg disorders are related to his period of service.  

A review of the Veteran's service treatment records finds the Veteran sought treatment in November 1967 and was assessed with left Achilles tendonitis.  He was placed on quarters for two days and there were no further complaints or requests for treatment.  In April 1969, the Veteran sought treatment at the battalion aid station in Vietnam for a twisted ankle and knee.  This initial entry did not indicate which leg or how the injury occurred, though the clinician noted there was no sign of fracture and the x-ray study was negative.  He was given an Ace wrap and bed rest.  On May 2, 1969 he sought treatment again for the sprained ankle and three days later in May 1969, another entry shows the Veteran sought follow-up treatment.  The clinician noted the ankle and calf of the left leg were "still" bothering the Veteran, and so, he was referred to another clinician, who assessed a pulled muscle in the left calf.  He was given crutches.  There were no further entries that referred to any aspect of the left leg, though the Veteran sought medical attention for other complaints.  There was no complaint or request for treatment in any of the service treatment reports for the left hip.

In August 1970 the Veteran underwent the Report of Medical Examination for the purpose of separation.  The lower extremities were found to be clinically normal.  This is strong evidence that weighs against the claim.  There was no Report of Medical History for separation purposes in the record.  In October 1970 the Veteran signed a statement certifying that to the best of his knowledge since the separation physical in August 1970, the only change to his medical condition was a recent broken shoulder.   

The Board recognizes that, in the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation, and, to that end, every reasonable doubt shall be resolved in favor of the veteran.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  However, these provisions deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service, both of which generally require competent medical evidence.  In other words, these provisions do not presumptively establish service connection for a combat veteran; rather, they relax the evidentiary requirements for determining what happened in service.  See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521, 524 (1996).

That the Veteran served in Vietnam and participated in combat is not in question, as he has been awarded the Combat Infantryman Badge.  Further, that he injured his left leg in some manner is also not in dispute, as he sought treatment while in Vietnam at the battalion aid station in April 1969, as discussed above.  However, the Board finds that this left knee, calf, and ankle injury was an acute injury, because the Veteran sought no further treatment after May 1969, his lower extremities were found to be clinically normal in August 1970, and the Veteran himself added that the only change in his medical condition in October 1970 was a broken shoulder.  

In February 1971 the Veteran submitted a claim seeking service connection for the right leg, knee, and ankle.  In March 1971 he was afforded a VA orthopedic examination during which he reported he injured his right hip, knee, and ankle in Vietnam and specifically denied any "problems" with his left knee and ankle.  An x-ray study of the left knee, left ankle, and the bilateral pelvis was taken in March 1971 and this study was read as negative.  (The RO denied service connection for the right leg in April 1971).

Further post-service private treatment reports contain scattered complaints of pain.  The Veteran reported to his private clinicians in November 2002 that he experienced "discomfort" in his left hip and left knee, though the private clinician did not provide an assessment.  In June 2003 he reported that his legs were tired and he had joint pain in the "hip", but again the private clinician, from a cardiovascular practice, did not provide an assessment.  In another June 2003 written summary from the same cardiovascular physician, the physician noted the Veteran had many muscular-skeletal problems, which included hip pain, without reaching an assessment, specifying the extremities, or referring to any event, injury, or disease in service.  

The Veteran submitted his current claim for leg pain in November 2006.  

He initiated VA treatment in August 2006 and was assessed with arthralgia.  Arthralgia is "pain in a joint."  Dorland's Illustrated Medical Dictionary 150 (32d ed.2012) [hereinafter Dorland's].  

Pursuant to the Board's June 2011 remand directives, the Veteran was afforded a VA examination of his left leg in July 2011.  The examination report shows that the examiner recorded the Veteran's reported history of injuring (twisting) his left hip and knee in a swimming pool while on "R&R" which was treated conservatively with no x-rays taken.  The examiner reviewed the service treatment records and noted the April 1969 treatment entry.  The Veteran also reported he had had no difficulty with the hip area until approximately five years earlier.  He has since been assessed with gout and was now taking Allopurinol.  Prior to this time, he reported being asymptomatic for both of the joints.  He described his employment as having been in heavy construction and that he was now retired.  

The examiner conducted an objective examination and found the Veteran's gait and station to be within normal limits.  The x-ray study of the left hip was normal and the x-ray study of the left knee revealed mild arthritis, assessed as osteoarthritis.  The examiner determined the Veteran left hip and knee were now entirely within normal limits, therefore it was less likely than not that he incurred any demonstrable injury.  The examiner also supported his conclusion by noting the Veteran's recent assessment of gout, such that he was on medication, the service treatment reports which objectively dated the injury to April 1969, and that the Veteran denied experiencing difficulty until approximately five years prior, which the examiner estimated to be in 2006, for his opinion that the Veteran's left knee arthritis was not at least as likely as not related to service.   

Here, the Veteran has current diagnoses of mild osteoarthritis in the left knee and gout in his left hip.  He contends that these disorders are related to an injury he experienced in service and in his September 2008 statement he described the pain he is experiencing as getting worse.  

Initially, the Board observes that the evidence of record does not show that the Veteran had chronic disorders involving the left hip or left knee in service, at separation, or within the first year after his separation from active service.  
38 C.F.R. §§ 3.303, 3.307, 3.309.  There is no evidence of any assessment of gout in service, or of any documented complaint or request for treatment regarding the left hip in service.  The Veteran was treated for a twisted left knee (and ankle) in April 1969 and after follow-up treatment in May 1969, with the assessment of left calf muscle strain, he never sought treatment again for any aspect of his left knee or left hip; therefore, no chronic disorder is shown in the service records.  Indeed, during the March 1971 VA orthopedic examination, the Veteran specifically denied having any "problems" with his left knee and the pelvis was subjected to an x-ray study which was normal.  The first medical evidence of any left hip or left knee disorder is not shown until the November 2002 reports to the private cardiovascular clinician.  The Veteran reported to the 2011 VA examiner that he had been asymptomatic in his left knee and hip until approximately five years prior to the examination.  

The evidence did not show objective findings of a diagnosed left hip disorder, injury or disease problem during service, at separation, or for years after service.  While the Veteran sought treatment for a twisted left knee in April 1969 in service, that acute injury obviously resolved, as the Veteran did not seek treatment for the left knee again, though he did seek treatment for his left calf and left ankle.  Upon service separation, his lower extremities were found to be clinically normal (August 1970) and in March 1971, the Veteran denied any "problems" with the left knee.  Even though the Veteran has a current diagnosis of osteoarthritis in the left knee, this was not first diagnosed in service or within the first year after his separation from service.  See 38 C.F.R. § 3.307, 3.309. 

The remaining question on appeal is whether the Veteran's current diagnosed disorders are related to his period of service.  Here, the Board finds that the preponderance of the medical evidence is against such a finding.

The July 2011 VA examiner concluded that the Veteran's current left hip was entirely within normal limits, other than the Veteran's recently assessed gout, and the left knee osteoarthritis disorder was not related to his service.  The VA examiner noted that the Veteran himself had reported he had had no problems with the left hip and knee until approximately five years prior to the July 2011 examination, which was evidence the examiner cited to support his opinion that the injury the Veteran described in service (twisting his hip and knee in a swimming pool) did not amount to what the examiner called a demonstrable injury.  Finally, there is no contrary medical opinion of record. 

The Board acknowledges that it must consider the Veteran's lay statements that he has experienced left hip and leg pain that has "gotten worse."  Since lay statements may be sufficient to establish a nexus, the Board must consider the competency and credibility of the Veteran's lay statements.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In ascertaining the competency and probative value of lay evidence, decisions of the Court have underscored the importance of determining whether a layperson is competent to identify the medical condition in question.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2). 

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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 
1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions, such as those regarding gout or osteoarthritis, and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). 

In this case, while the Veteran is competent to report an injury, that he twisted his left hip in a pool in service, and his symptoms over time, the reported history of his having continuous left hip or left knee symptoms since service is contradicted by the assessment of the service clinician that his lower extremities were clinically normal in August 1970, by his own denial of any knee problems during the March 1971 VA examination, and his statement to the July 2011 VA examiner that he had been asymptomatic in the joints prior to approximately 2006 ("five years ago").  Also, the probative value of his lay opinion is substantially undermined by the fact that he did not seek treatment for pain in the left hip and knee until November 2002, which comes more than 30 years after service.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service).  The report of continuous let hip and left knee symptoms since service is not credible.

The Board notes that the Veteran does not have any medical training and expertise, and is simply not qualified to render a medical opinion as to the diagnosis of osteoarthritis of the left knee or the etiology of gout in the left hip.  Standing in opposition to the Veteran's belief that he has a left leg disorder that is related to service is the opinion of the July 2011 VA examiner who ruled out a link between the Veteran's currently diagnosed left hip and left knee disorders and his service.   

Accordingly, the Board finds that the preponderance of the evidence establishes that the Veteran's claimed left leg disorder, currently identified as osteoarthritis of the left knee and gout of the left hip, are related to his period of service.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.

3.  Initial Disability Rating for Bilateral Hearing Loss 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. 
§ 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  The Board interprets 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.  See 38 C.F.R. § 4.2.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations apply, the higher of the two will be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. § 4.7.  The Board will evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity.  See 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

In general, 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).  In determining the present level of disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  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, from 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. 

A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

Evaluations of bilateral defective hearing range from noncompensable to 100 percent.  The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric Level I for essentially normal acuity, through numeric Level XI for profound deafness.  38 C.F.R. § 4.85. 

The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86, but the Veteran's test results do not meet the numerical criteria for such a rating.  In this regard, his pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) are not 55 decibels or more, nor are the average pure tone thresholds 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, in either ear.  Thus, application of 38 C.F.R. § 4.86 is not warranted, and his bilateral hearing loss is to be rated by the usual method. 

The RO has assigned a noncompensable (0 percent) rating for bilateral hearing loss.  While the Veteran contends that his hearing loss is more severe, the Board finds that the noncompensable rating is warranted for the entire appeal period.   

The record includes the report of a March 2007 audiogram administered by VA clinicians as the Veteran sought medical treatment for other symptoms.  The numerical results are of record, in graph form, though speech recognition ability was not clearly identified.  




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
65

70
LEFT
25
30
60

70

On the authorized audiological evaluation in July 2007 conducted for the purposes of determining whether service connection was warranted, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
60
60
75
LEFT
20
30
50
65
75

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear.

The Veteran reported his in-service noise exposure as having served in combat for one year, being daily exposed to incoming rockets and grenades.  Post-service, he experienced 30 years of occupational noise in construction, though he often wore hearing protection devices.  He denied recreational noise.  He described his current symptoms as often being unable to understand speech.  While the Veteran also described nearly 15 years of feeling unsteady and dizzy, which he was unable to relate this to a single event, the examiner did not attribute these symptoms to the assessed sensorineurial hearing loss and found the examination's audiological findings did not indicate the presence of an ear or hearing problem that warranted a medical follow-up or a condition that if treated, might change hearing thresholds.    

The examiner determined the word recognition scores were good in the right ear and excellent in the left ear.  After reviewing the claims file that included the service treatment reports, the examiner found the Veteran's hearing loss at least as likely as not related to service.    

The Board observes that the March 2007 VA audiological examination report rendered decibel averages and speech discrimination scores that correlate to auditory acuity Level I in the right ear and auditory acuity Level I in the left ear under Table VI of 38 C.F.R. § 4.85.  Using Table VII of 38 C.F.R. § 4.85, the results warrant a 0 percent (noncompensable) rating under Diagnostic Code 6100.

On the authorized audiological evaluation in May 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
65
65
80
LEFT
25
45
50
65
70

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 96 percent in the left ear.  The examiner noted a review of the claims file, to include the 2007 VA examination, which was reviewed with the Veteran, who reported no changes in hearing sensitivity.  

The Board observes that the May 2008 VA audiological examination report rendered decibel averages and speech discrimination scores that correlate to auditory acuity Level III in the right ear and auditory acuity Level II in the left ear under Table VI of 38 C.F.R. § 4.85.  Using Table VII of 38 C.F.R. § 4.85, the results warrant a 0 percent (noncompensable) rating under Diagnostic Code 6100.

The Veteran submitted a statement in September 2008 in which he reported his difficulties hearing and understanding a speaker who was not facing him.

On the authorized audiological evaluation in July 2011, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
65
65
85
LEFT
25
35
55
65
70

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear.  The Veteran reported his in-service noise exposure, and that post-service, he experienced 30 years in carpentry, with noise protection for 20 of those years, and now, recreational noise exposure which consisted of hunting without noise protection in the 1970's.  Currently, he experienced difficulty understanding speech, hearing people and needing them to repeat themselves, and difficulty with speech at a distance.  His wife has complained about his hearing and he reported having tried hearing aids without success.  (The Veteran's July 2006 claim indicated he had retired from employment in 2002).  The examiner specifically noted that the Veteran's symptoms of hearing loss were those typically seen with hearing loss.  

The Board observes that the July 2011 VA audiological examination report, which is the most recent of record, rendered decibel averages and speech discrimination scores that correlate to auditory acuity Level II in the right ear and auditory acuity Level I in the left ear under Table VI of 38 C.F.R. § 4.85.  Using Table VII of 38 C.F.R. § 4.85, the results warrant a 0 percent (noncompensable) rating under Diagnostic Code 6100.

Based on the reports during the entire period of the appeal, none of the Veteran's hearing tests support findings that would warrant more than the assigned 0 percent (noncompensable) rating. 

This is an initial rating case, on appeal from the decision granting service connection.  The Board finds that there are no distinct periods of time, since the effective date of service connection, during which the Veteran's bilateral hearing loss has been more than 0 percent disabling.  Thus "staged ratings" greater than a 0 percent rating are not warranted for any period of time since the effective date of service connection.  Fenderson, supra. 

The Board is sympathetic to the Veteran's contentions regarding the severity of his service-connected bilateral hearing loss.  The Board notes, however, that applying the rating criteria to the audiological test results does not warrant a higher (compensable) rating.  The Veteran's lack of success with hearing aids does not affect the Veteran's rating, as hearing tests are conducted without hearing aids.  
38 C.F.R. § 4.85(a). 

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing and understanding speech) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.  The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned.  The July 2011 VA examiner specifically noted that the symptoms of the Veteran's hearing loss were those typically seen with hearing loss.  As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

As the preponderance of the evidence is against the claim for a compensable rating, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. 
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

4.  Other considerations

A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  There is no indication in the claims file, and the Veteran has not alleged, that he was unable to obtain or maintain gainful employment due to service connected bilateral hearing loss.  Hence further consideration of TDIU is not warranted. 


ORDER

Service connection for a left leg disorder is denied.

An initial compensable disability rating for bilateral hearing loss is denied. 


REMAND

A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

The Board's earlier remand already found the November 2006 VA examination regarding the erectile dysfunction disorder to be inadequate, because the examiner did not have the benefit of a claims file review.  In June 2011 the Board ordered that the Veteran should be provided with another genitourinary examination regarding whether the erectile dysfunction disorder was caused or aggravated by the already service-connected diabetes mellitus.  In July 2011 the Veteran was afforded a VA genitourinary examination.  While the examiner indicated a claims file review and after he noted in some detail the Veteran's report of developing erectile dysfunction after he was assessed with the non-service connected hypertension, the examiner also noted the Veteran's report of the erectile dysfunction become worse after he was assessed with the now service-connected diabetes mellitus, yet the examiner determined the erectile dysfunction was not caused or aggravated by the diabetes, with no rationale for that opinion.  The Board finds this July 2011 examination inadequate because the examiner provided a bare opinion with no rationale.  

Because VA undertook to provide a VA examination to evaluate the claimed erectile dysfunction, the Board must ensure that such an examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007).  The July 2011 VA examination is inadequate because the examiner did not include a rationale for the opinion offered and a remand necessary to obtain a supplemental opinion (and new examination, if warranted).  See Stegall.   

In a May 2007 rating decision, the RO granted service connection for peripheral neuropathy of all extremities and assigned a noncompensable rating, effective July 24, 2006.  In February 2008, the Veteran submitted a notice of disagreement as to that issue.  In a November 2008 rating decision, the RO assigned separate 10 percent ratings for each extremity, effective the date of the grant of service connection.  The Veteran has not been issued a statement of the case (SOC) with respect to these issues.  As a result, the Board must remand this issue to the RO to furnish an SOC that addresses these issues and to give the Veteran an opportunity to perfect an appeal of the same by submitting a timely substantive appeal.  See Manlicon v. West, 12 Vet. App. 238 (1999). 

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be furnished with a notice letter addressing the types of evidence needed to support his claim for service connection erectile dysfunction as secondary to the service-connected diabetes mellitus under 38 C.F.R. § 3.310 and the relative duties of the Veteran and VA in obtaining such evidence.

2.  After completion of the foregoing, schedule the Veteran for an appropriate examination with regard to his claim of entitlement to service connection for erectile dysfunction as secondary to his service-connected diabetes mellitus.  All indicated tests should be accomplished.  The claims folder and a copy of this REMAND must be made available to the examiner. 

Based on the examination and review of the record, the examiner should address the following:  

(a) Is it at least as likely as not (50 percent or higher degree of probability) that any current erectile dysfunction was caused by his service-connected diabetes mellitus?

(b) Is it at least as likely as not that the Veteran's service-connected diabetes mellitus aggravated any current erectile dysfunction?

The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of erectile dysfunction present (i.e., a baseline) before the onset of the aggravation. 

3.  The AMC/RO should issue the Veteran and his representative a Statement of the Case (SOC) on the issue of entitlement to initial disability ratings greater than 10 percent for peripheral neuropathy of the bilateral upper and lower extremities.  The Veteran should also be advised that, for the Board to have jurisdiction in the matter, he must file a timely substantive appeal responding to the SOC.  Should the Veteran or his representative submit a timely substantive appeal, the matter should be returned to the Board for appellate review.  

4.  After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC should readjudicate the claims on appeal in light of all pertinent evidence (to particularly include all evidence added to the claims file since the RO's last adjudication of the claims) and legal authority.   

5.  If any benefit sought on appeal remains denied, the RO/AMC must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration
 
The Veteran has the right to submit additional evidence and argument on the 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).




______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs