Citation Nr: 1306028	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  09-21 049	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, as secondary to service-connected residuals of herniated nucleus pulposis with mild spinal stenosis at L3-4 and L4-5 status post lumbar interbody fusion at S1.

2.  Entitlement to a compensable disability rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from September 1977 to October 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which continued the noncompensable disability rating for bilateral hearing loss.  The issue of entitlement to service connection for objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, was remanded by the Board in January 2012 as a component part of the Veteran's claim for an increased disability rating for his service-connected residuals of herniated nucleus pulposis with mild spinal stenosis at L3-4 and L4-5 status post lumbar interbody fusion at S1, which the RO adjudicated in its June 2008 decision.

In September 2011, the Veteran and his spouse testified before the undersigned Veterans Law Judge in a hearing at the VA Central Office in Washington, DC.  A transcript of their testimony is of record.

As noted above, the Board remanded the case to the RO for further development in January 2012.  The file has now been returned to the Board for further appellate review.


FINDINGS OF FACT

1.  The most probative evidence fails to link the Veteran's objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, to active service, or to his service-connected residuals of herniated nucleus pulposis with mild spinal stenosis at L3-4 and L4-5 status post lumbar interbody fusion at S1.

2.  The Veteran's bilateral ear hearing loss is manifested by no more than Level II for the right ear and Level III for the left ear.


CONCLUSIONS OF LAW

1.  The criteria for service connection for objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, have not been met.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).

2.  The criteria for an initial compensable evaluation for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).

With respect to the Veteran's increased rating claim for bilateral hearing loss, VA's duty to notify was satisfied by way of letters sent in April 2008 and January 2012.  Those letters fully addressed the notice elements.  Specifically, such letters in combination informed the Veteran of what evidence was required to substantiate his rating claim, and of his and VA's respective duties for obtaining evidence.  The RO also provided adequate notice of how disability ratings and effective dates are assigned.

With respect to the Veteran's service connection claim for objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, the Veteran was not advised of the criteria for establishing service connection on either a direct or secondary basis.  However, the Board finds that this lack of notice is non-prejudicial because the Veteran demonstrated actual knowledge of the criteria for establishing such service connection in statements by his representative dated May 2012 and December 2012.  Moreover, neither the Veteran nor his representative has alleged any prejudice resulting from the notice deficiencies.

VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issues has been obtained.  The Veteran's service treatment records and VA treatment records have been obtained.

The Veteran was provided with a VA examination in February 2012 with regard to his claim for service connection for objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, and the Board obtained a medical expert opinion relevant to that claim from the Veterans Health Administration (VHA) in October 2012.  The Board finds that the VHA opinion is sufficient for adjudicatory purposes, as the physician addressed the Veteran's reported history, as well as his current symptoms and diagnosis.  The opinion rendered is also sufficient as it included adequate rationales for the negative nexus opinion, namely the fact that the location of the Veteran's service-connected spinal cord disability and the temporal relationship to his genitourinary complaints show that the two are unrelated.

The Veteran was also afforded VA examinations in January 2009, December 2010, and February 2012 regarding the increased rating claim for bilateral hearing loss on appeal.  The Board finds that such VA examinations are adequate to decide the issue as they are predicated on a review of the complete record.  Specifically, the opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed.  Furthermore, the examiners fully described the functional effects caused by the Veteran's bilateral hearing loss.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  Therefore, the Board finds that these examination reports are adequate for the purposes of deciding the claim on appeal regarding the bilateral hearing loss rating claim.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The Veteran has not indicated there are any additional records that VA should obtain on his behalf.  Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required.

This claim was remanded by the Board for additional development in January 2012.  There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA has requested additional treatment records and lay statements.  Additionally, VA provided the Veteran with new examinations in February 2012.  Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim.  The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating.  The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims.  This was not necessary, however, because the Veteran volunteered his treatment history and symptoms since service.  Accordingly, the Veteran is not shown to be prejudiced on this basis.

Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Analysis: Service Connection for Objective Neurologic Genitourinary Abnormalities, to include Bladder Disorder and Erectile Disorder

The Veteran contends that his objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, are secondary to his service-connected residuals of herniated nucleus pulposis with mild spinal stenosis at L3-4 and L4-5 status post lumbar interbody fusion at S1.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

Service connection may also be established for disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2012).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995).

In the present case, the Board finds that the evidence does not support a grant of service connection for objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, on either a direct or secondary basis.

The Board acknowledges that the Veteran has a current diagnosis of a bladder disorder and an erectile disorder during the pendency of the claim-in this case, in or after April 2008.  Specifically, the February 2012 VA examiner diagnosed the Veteran with benign prostatic hyperplasia (BPH), lower urinary tract symptoms (LUTS), and erectile dysfunction.  McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim).

As an initial matter, the Board notes that the Veteran does not contend, and the evidence does not show, that his objective neurologic genitourinary abnormalities are related to service on a direct basis.  Specifically, the evidence does not show in-service incurrence or aggravation of objective neurologic genitourinary abnormalities, or a nexus between an in-service injury or disease and the current disabilities.  The service treatment records reflect no complaints, diagnoses, or treatment of objective neurologic genitourinary abnormalities.  In Reports of Medical History dated September 1983 and July 1998, the Veteran reported that he did not have, and had never had, painful urination.  In Reports of Medical Examination dated September 1983, January 1995, and July 1998, clinicians found that the Veteran's genitourinary (G-U) system was normal.  Furthermore, the Veteran has not reported continuity of symptomatology of any objective neurologic genitourinary abnormalities since service.  Consequently, service connection for objective neurologic genitourinary abnormalities on a direct basis is not warranted.

With respect to service connection on a secondary basis, the Veteran asserted at his September 2011 hearing before the undersigned Veterans Law Judge that his bladder disorder and erectile dysfunction are related to his service-connected back disability via the nerves that run through his spine.  See transcript, pp. 16-18.

In February 2012, in compliance with the Board's remand following the hearing, a VA nurse practitioner performed a urinary tract and reproductive system examination.  He diagnosed the Veteran with BPH, LUTS, and erectile dysfunction, and stated that the etiology of the Veteran's voiding dysfunction is BPH, and the etiology of his erectile dysfunction is that it is a side effect of his Paroxetine HCL medication. The examiner opined that it is less likely than not that the Veteran's BPH, LUTS, and erectile dysfunction are related to his service-connected lower back condition.  The examiner explained that "The nerve supplying to the genitourinary tract system is at the T11-L2 or L3 spinal cord levels.  Veteran's lower back condition is fusion of L5-S1.  The L5-S1 spinal cord does not supply nerve stimuli to the genitourinary tract system."

Because the Veteran's service-connected lumbar spine disorder includes L3, however, the Board sought new medical evidence from a VHA expert, an orthopaedic spine surgeon, who reviewed the claims file in October 2012 and opined:

The efferent projection relevant to penile erection refers to the thoracolumbar sympathetic (T10-L2) and sacral parasympathetic (S2-S4) divisions of the autonomic nervous system, and the sacral somatic (S2-S4) nervous system.  The autonomic input is primarily represented by the cavernous nerves, arising from the inferior hypogastric plexus, and the somatic input is represented by the pudendal nerves, which course from the sacral plexus.  The afferent projection relevant to penile erection involves sacral innervations (S2-S4) and is represented by the dorsal nerves of the penis, sensory branches of the pudendal nerves.  (Kulaksizoglu H, Kaptan H.  An unappreciated correlation: surgical treatment of lumbosacral disc disease and erectile dysfunction. J Korean Neurosurg Soc. 2010 Apr;47(4):282-6.  Epub 2010 Apr 30.)  Given the level of appellant's surgery at L5-S1 and very mild stenosis at the cephalad 2 spinal segments at L3-4 and L4-5, in association with the remote temporal relationship of the patient's genitourinary complaints with his L5-S1 lumbar spinal fusion, I find it more likely than not that the two are unrelated.

There is significant evidence in the literature that pre-operative genitourinary symptoms may not resolve after surgical decompression.  In appellant's case, there was no documentation that he had any genitourinary symptoms until well after the surgical procedure at L5-S1, making a diagnosis of BPH much more likely given his age.

In summary it is my opinion to a reasonable degree of medical certainty that more probably than not appellant's current erectile dysfunction and urinary symptoms are unrelated to his lumbar spinal condition.

The Board finds that the October 2012 VHA physician's opinions with respect to the question of secondary service connection are the most probative of record.  The VHA physician's opinions constitute competent medical evidence because he is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Also, the Board finds that the VHA physician's etiological opinions are credible based on their internal consistency and his duty to provide truthful opinions.  The Board further finds that the October 2012 VHA physician's opinions are most probative because he considered the Veteran's medical records and discussed his medical history in detail, provided unequivocal and conclusive opinions, and offered clear reasoning demonstrating that the Veteran's service-connected spinal cord disability and the temporal relationship to his genitourinary complaints show that the two are unrelated.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

By contrast, the Board finds that the Veteran's own lay statements linking his objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, to his service-connected lumbar spine disorder are not entitled to any probative weight because under the circumstances of this particular case he is not competent to opine on the relationships between such complex medical disorders.  Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved); Kahana v. Shinseki, 24 Vet. App. 428 (2011).  In this case, the Veteran is competent to report that he has a bladder disorder and an erectile disorder.  However, because such disorders and any possible interactions with lumbar spine disorders involve complex medical questions and the interpretation of objective medical tests, the Veteran is not competent to render a nexus opinion on those matters.  Woehlaert, 21 Vet. App. at 462.  Consequently, the Veteran's lay statements asserting a nexus do not constitute a competent medical nexus opinion.

In sum, the Board finds that the most probative evidence fails to link the Veteran's objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, to service, or to his service-connected lumbar spine disability.  Accordingly, service connection for objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, is not warranted.

In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

Analysis: Increased Rating for Bilateral Hearing Loss

The Veteran contends in his September 2011 testimony before the undersigned Veterans Law Judge and elsewhere that he is entitled to a compensable disability evaluation for his bilateral hearing loss.  See transcript, pp. 20-21.  The Veteran's spouse has also informed VA of her observations of the Veteran's difficulties with his hearing.  Id., p. 20.

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  Fenderson v. West 12 Vet. App. 119, 126 (1999).  The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation.  AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100.  This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores.  Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Audiometric results are matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment.  To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness.  38 C.F.R. § 4.85.  When impaired hearing is service connected in one ear only, the non-service-connected ear will be assigned a designation of level I from Table VII.  38 C.F.R. § 4.85(f).

The provisions of section 4.86 address exceptional patterns of hearing loss, which are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) are 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz.  38 C.F.R. § 4.86.

In a January 2009 examination, pure tone thresholds, in decibels, were as follows:

Jan. 2009

HERTZ



1000
2000
3000
4000
RIGHT
35
20
40
45
LEFT
35
30
40
50

The average decibel loss was 35 in the right ear and 39 in the left ear.  Speech discrimination was noted to be 94 percent in the right ear and 86 percent in the left ear.  The examiner diagnosed mild to moderate sensorineural hearing loss bilaterally.  The audiometry test results equate to Level I hearing in the right ear using Table VI and Level II in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level II hearing in the left ear does not result in a rating in excess of the current noncompensable evaluation.

In a December 2010 examination, pure tone thresholds, in decibels, were as follows:

Dec. 2010

HERTZ



1000
2000
3000
4000
RIGHT
35
30
45
50
LEFT
35
40
35
50

The average decibel loss was 40 in the right ear and 40 in the left ear.  Speech discrimination was noted to be 90 percent in the right ear and 84 percent in the left ear.  The examiner diagnosed mild to moderate sensorineural hearing loss bilaterally.  The audiometry test results equate to Level II hearing in the right ear using Table VI and Level II in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level II hearing in the right ear and Level II hearing in the left ear does not result in a rating in excess of the current noncompensable evaluation.

In a February 2012 examination, pure tone thresholds, in decibels, were as follows:

Feb. 2012

HERTZ



1000
2000
3000
4000
RIGHT
45
40
50
50
LEFT
35
40
45
55

The average decibel loss was 46 in the right ear and 44 in the left ear.  Speech discrimination was noted to be 86 percent in the right ear and 82 percent in the left ear.  The examiner diagnosed sensorineural hearing loss bilaterally.  The audiometry test results equate to Level II hearing in the right ear using Table VI and Level III in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level II hearing in the right ear and Level III hearing in the left ear does not result in a rating in excess of the current noncompensable evaluation.

In evaluating the Veteran's claim for a higher initial rating, the medical evidence does not support the assignment of a compensable rating for bilateral hearing loss.  To the extent that the Veteran's hearing is significantly impaired, as the Veteran and his family members have asserted, the fact that his hearing acuity is less than optimal does not by itself establish entitlement to a compensable disability rating.  To the contrary, under the Rating Schedule a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  Therefore, the preponderance of the evidence is against the claim and entitlement to a compensable evaluation is not warranted.

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 extra-schedular 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 extra-schedular 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).  Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's bilateral hearing loss, which include difficulty hearing.  The rating criteria are therefore adequate to evaluate the bilateral hearing loss, and referral for consideration of an extraschedular rating is not warranted.

Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  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, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The Veteran has not submitted evidence of unemployability due to his bilateral hearing loss.  Moreover, he testified at his September 2011 hearing that he is employed on a full-time basis.  See transcript, p. 5.  Thus, TDIU is not raised by the record.


ORDER

Service connection for objective neurologic genitourinary abnormalities, to include bladder disorder and erectile disorder, is denied.

A compensable evaluation for bilateral hearing loss is denied.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs