Citation Nr: 1308991	
Decision Date: 03/18/13    Archive Date: 03/25/13

DOCKET NO.  09-25 380	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to service connection for a bilateral knee disability.

2. Entitlement to service connection for paresthesia and numbness of the bilateral lower extremities (claimed as "peripheral neuropathy").

3. Entitlement to service connection for paresthesia and numbness of the left upper extremity (claimed as "peripheral neuropathy").

4. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity.

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

6. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service connected disabilities.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from January 1970 to August 1971. The record confirms the Veteran served in the Republic of Vietnam and he is a recipient of the Combat Infantryman Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In January 2013, the Veteran and his wife testified at a video conference hearing before the undersigned. A copy of the transcript has been associated with the claims file. During the hearing, the Veteran presented evidence of unemployability due to his service-connected disabilities, and therefore raised a claim of TDIU. Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009).  Pursuant to Rice, the Board will consider entitlement to a TDIU as it is part and parcel of his claim for an increased disability evaluation. 

A review of the Virtual VA paperless claims processing system reveals additional records pertinent to the present appeal.

The issues of entitlement to service connection for paresthesias and numbness of the bilateral lower and upper left extremities, entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity, and entitlement to a TDIU 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 does not have a bilateral knee disability that is causally related to service.

2. The Veteran's hearing loss is manifested by Level I hearing acuity in the right ear and Level II hearing acuity in the left ear.


CONCLUSIONS OF LAW

1. The Veteran does not have a bilateral knee disability due to disease or injury that was incurred or aggravated by active military duty nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107, 7104 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2. The criteria for an initial compensable disability evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); the layperson is reporting a contemporaneous medical diagnosis; or, lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).
After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The standard of proof to be applied is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2012). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 


Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). 

February and April 2008 VCAA letters explained the evidence necessary to substantiate the Veteran's claims for service connection. These letters also informed him of his and VA's respective duties for obtaining evidence, and were provided before initial adjudication of the claim in August 2008. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally the Veteran was advised of the manner in which effective dates and disability ratings are assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

With regard to the Veteran's increased evaluation claims, this appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA 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). Filing a notice of disagreement (NOD) begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as the disability evaluation assigned) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104  and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran was provided with a statement of the case (SOC) and supplemental statement of the case (SSOC) in June 2009 and January 2013, respectively.

VA also has a duty to assist in the development of the claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA examination and opinion shall be provided when there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," but there is "insufficient competent medical evidence on file for the Secretary to make a decision on the claim." See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

The RO has obtained the Veteran's STRs and post-service treatment records. The Veteran has not identified any additional records that he wished the RO to obtain.  Further, VA hearing examinations were conducted in April 2008 and May 2012, and a VA joint examination of the right knee was in June 2008. The Board finds these examination reports are adequate because they were conducted with a full review of the record. 

A VA examination of the left knee was not conducted, and the Board finds that one is not warranted. A VA medical examination is not be necessary within the meaning of the law if the evidence shows that the claimant had no in-service event that caused or aggravated the disability for which service connection is sought. Bardwell v. Shinseki, 24 Vet.App. 36 (2010); see also Pond v. West, 12 Vet.App. 341 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995) ((observing that to establish service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury)); 38 U.S.C.A. § 5103A(d) are not met. 

The evidence does not contain any indication that the Veteran injured his left knee or complained about it during service, nor were any problems indicated prior to separation. He has made no contentions as to why he believes his left knee disability is connected to service, except to the extent that he implies it is related to his right knee disability. In that regard, the June 2008 VA examiner opined against a relationship between the Veteran's right knee disability and his active duty service, as will be discussed in more detail below. Without some other indication that the Veteran's left knee disability is related to service-the evidentiary requirement for such a showing is low-a VA examination of the left knee is not warranted under 38 U.S.C.A. § 5103A(d). See McLendon, 20 Vet. App. at 83.

All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


	Service Connection Claim

The Veteran asserts that he developed a bilateral knee disability as a result of two injuries sustained: one during boot camp, which is documented in his STRs; and, one during combat, which is not documented in his STRs.  He further asserts that he first experienced knee pain in active duty service.  The preponderance of the evidence is against the claim, and the appeal will be denied.

Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. 
	
A three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, at *1 (Fed. Cir. Feb. 21, 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard.  See Walker, 2013 WL 628429, at *7 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker, 2013 WL 628429, at *6.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met.  Id. 

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274 at 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing to its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. 

For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to grant service connection as to the in-service event. Collette v. Brown, 82 F.3d 389 (1996). Under the statute, in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 
38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2010).

However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet.App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. Gregory v. Brown, 8 Vet.App. 563 (1996).
The Veteran has been diagnosed with osteoarthritis of the right knee, thus he has a current disability, and one which is defined as chronic by regulation cited above. See VA examination dated June 18, 2008. The evidence does not indicate that the Veteran's left knee has been diagnosed with a disability. Indeed, the only record that mentions the left knee simply indicates that the Veteran was prescribed Tramadol for bilateral knee and hip pain. See VA treatment dated June 19, 2012.

Because the Veteran does not have a current diagnosed disability affecting the left knee, service connection for that knee cannot be granted as a matter of law. 38 U.S.C.A. § 1110; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet.App. 223 (1992)(generally observing that in the absence of proof of a current disability, there can be no valid claim). The analysis will continue in regard to the Veteran's right knee only.

When the Veteran entered service, he did not complain of any knee trouble and his lower extremities were clinically evaluated as normal. See Reports of Medical Examination and History, dated October 23, 1969. During service, he injured his right knee, but X-rays of the injury were negative, there was no effusion, and the Veteran had full range of motion. See STR dated May 26, 1970. Upon separation, his lower extremities were again clinically evaluated as normal, and the Veteran signed a statement indicating his health had not changed since his last physical examination and that he was in good condition. He scored a 1 out of 4 on his PULHES profile. See Report of Medical Examination dated August 22, 1971; Odiorne v. Principi, 3 Vet.App. 456 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service).

The Veteran testified that he "blew out" his right knee while crossing a river during combat operations. See Hearing transcript page 8. He indicated he did not seek any treatment for this, aside from asking his medic for something to relieve the pain, and that it would not be listed in his STRs. Because such an activity is consistent with the circumstances and conditions of service in the Army Infantry during the Vietnam Era, the Board presumes that this incident occurred. See 38 U.S.C.A. § 1154(b). 

However, the preponderance of the evidence is against a finding as to the question of whether this incident is linked to any incident of service - i.e., the "nexus" requirement. The first record documenting right knee trouble since service is dated in August 2005-over 30 years after separation from active duty. The Veteran twisted his right knee while fishing, which his doctor described as the fourth episode of pain in that knee. See Dr. SRT dated August 18, 2005. In September 2005, the Veteran had arthroscopic surgery of his right knee. Id.

The June 2008 VA examiner opined that the Veteran's right knee arthritis is not related to service. The VA examiner noted that there is no evidence of sequelae following discharge or any chronic condition or continuing treatment until decades after separation, which does not support a chronological link to an incident in service. From her medically-trained perspective, she further noted that he did not seek treatment until 2005, which also implies a later onset of symptoms. She thought that his age or a genetic predisposition were more likely contributing factors. See VA examination dated June 18, 2008. 

There is no medical evidence suggesting a link to active duty service. The Veteran testified that he first had a knee problem while in basic training. To the extent that he is asserting continuity, the statement is not credible. As noted, in his August 1971 separation examination, testing indicated normal lower extremities, and his PULHES lower extremities profile indicated that he was then in a high state of physical fitness. See Odiorne v. Principi, 3 Vet.App. 456 (1992); (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). The Veteran wrote on the report that he was in good health, and that it had not changed since his last physical. He then signed the examination form, as did a medical officer of the U.S. Army. 

These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).

In Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), the Court held that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, although the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. There are no clinical findings of a right knee disability until August 2005, over thirty years after the Veteran separated from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service). The Board places greater weight of probative value on the clinical findings and the history the Veteran presented to medical professionals for clinical purposes when he was discharged from service, than it does on the Veteran's allegations of continuity, made to VA and in connection with a claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility).  

The preponderance of the evidence is against a finding of service connection for the Veteran's right knee disability. As discussed above, the evidence does not show the Veteran to have a current left knee disability. 

Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a bilateral knee disability will be denied.  See 38 C.F.R. § 3.102 (2012); Gilbert, 1 Vet. App. at 55. 


Increased Disability Evaluation Claim

The Veteran contends that his bilateral hearing loss is more severe than reflected by its initial noncompensable evaluation.

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155  (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2011). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation under Diagnostic Code 6100. 38 C.F.R. §§ 4.85, 4.86.

Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once a disability is established, levels of hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores, resulting in a Roman numeral designation for hearing loss. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are assigned by combining the level of hearing loss in each ear. 38 C.F.R. § 4.85(e), Table VII. 
See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination" is used to determine a Roman numeral designation (I through XI) for hearing impairment in each ear based on consideration of speech discrimination as well as pure tone threshold averages, unless the examiner certifies that use of the speech discrimination test is not appropriate. In that case, table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average" is used. Table VII, "Percentage Evaluation for Hearing Impairment" is then used to determine the percentage evaluation by combining the Roman numeral of each ear. 38 C.F.R. §§ 3.383, 3.385, 4.85(b). 

The Veteran underwent a VA audiology examination in April 2008. His pure tone thresholds, in decibels, were as follows: 




HERTZ


April 2008
500
1000
2000
3000
4000
RIGHT
30
40
50
65
80
LEFT
30
40
50
90
85

The average puretone threshold was 59 decibels in the right ear and 66 decibels in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in both ears. The audiologist noted that the Veteran's disability caused difficulty hearing the television, the telephone, and low conversations. See VA examination dated April 17, 2008. This was a description of the effect of his disability on his daily activities. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). 

Applying the results of the April 2008 examination to Table VI of the VA regulations yields a Roman numeral value of III in both ears. Applying these values to Table VII, the Veteran's bilateral hearing loss warrants a noncompensable evaluation. 38 C.F.R. § 4.85, 4.86.

The Veteran underwent a second VA examination in May 2012. His pure tone thresholds, in decibels, were as follows: 




HERTZ


May 2012
500
1000
2000
3000
4000
RIGHT
35
40
45
70
70
LEFT
30
35
60
85
80

The average puretone threshold was 56 decibels in the right ear and 65 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The audiologist noted that the Veteran's disability did have any impact on the Veteran's daily life. See VA examination dated May 29, 2012; see also 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 455-56  . 

Applying the results of the May 2012 VA examination to Table VI of the VA regulations yields a Roman numeral value of I in the right ear and II in the left ear. Applying these values to Table VII, the Veteran's bilateral hearing loss warrants a noncompensable evaluation. 38 C.F.R. § 4.85, 4.86.

If the Veteran has either of two exceptional patterns of hearing impairment, the Roman numeral value is determined using both Table VI and VIa. 38 C.F.R. § 4.86. This method is used if the Veteran's puretone threshold at each of the four specified frequencies is 55 decibels or more, or if the Veteran's pure tone threshold is 30 decibels or less at 1000 Hertz  and 70 decibels or more at 2000 Hertz. Whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id. In this case, the Veteran's hearing loss does not meet the standard for an exceptional pattern of hearing impairment and Table VIa will not be applied. 

As the Veteran's hearing loss, when calculated using Table VII, does not warrant a compensable disability evaluation, his claim is denied. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Veteran's hearing loss has not met the requirements for a higher rating at any time since the effective date of his award, so the Board may not stage his rating. Fenderson, 12 Vet. App. at 125-26. 

The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case. 38 C.F.R. § 3.321(b)(1) (2012). The Veteran has not presented any evidence that his bilateral hearing loss results in a unique disability that is not addressed by the rating criteria. The Veteran's bilateral hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. As noted above, the Veteran's bilateral hearing loss is manifested by, at worst, Level III hearing loss in each ear. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for bilateral hearing loss. A rating in excess of the currently assigned rating is provided for certain manifestations of hearing loss, but the medical evidence reflects that those manifestations are not present in this case. The criteria for a noncompensable rating for the Veteran's bilateral hearing loss more than reasonably describe his disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 337 (1996).


ORDER

Entitlement to service connection for a bilateral knee disorder is denied.

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


REMAND

The remainder of the Veteran's claims must be remanded for further development.

With respect to the issue of entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity, the Veteran submitted a timely NOD in January 2009 in response to an August 2008 rating decision that granted service connection for peripheral neuropathy of the right upper extremity. In the statement, he indicated that he had problems with feeling in his "hands;" however, in the statement of the case (SOC), the RO only addressed the claim pertaining to his left upper extremity. Accordingly, this claim for an increased disability evaluation for the right upper extremity must be remanded to the RO for issuance of an SOC. See 38 C.F.R. §19.9(c) (2012); see also Manlincon v. West, 12 Vet.App. 238 (1999); Godfrey v. Brown, 7 Vet. App.398, 408- 410 (1995). The Board emphasizes that the Veteran must perfect his appeal in order to obtain appellate review of this claim. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012).

With respect to the issues of service connection for paresthesia and numbness of the bilateral lower and upper left extremities, the Veteran testified during his hearing that he received ongoing treatment from a VA physician in practice at the Houston, Texas VAMC. The Veteran reported that he had an appointment with him the following day. According to the Veteran and his wife, they expected to receive some test results concerning the Veteran's paresthesia and numbness, which are not in the Veteran's file. Because there may be outstanding and relevant VA medical records, the RO must obtain these records. See 38 U.S.C.A. § 5103A (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

The etiology of the Veteran's paresthesia and numbness requires further development. The Veteran initially claimed entitlement to service connection for peripheral neuropathy of the upper and lower extremities. His treating physicians only made provisional diagnoses of peripheral neuropathy, however, VA examinations in April 2008 and June 2012 definitively found that the Veteran did not have the disorder in his lower and upper left extremities, because his motor function was normal and his sensory function was intact. The cause of these symptoms remains unknown, thus a VA examination is in order. Shoffner v. Principi, 16 Vet. App. 208 (2002) (It is in VA's discretion to determine when development is necessary).

Finally, the Veteran has asserted that he has had to retire due to his service-connected disabilities. As noted above, when evidence is presented that raises the issue of unemployability, the question of whether a total disability rating due to individual unemployability, or TDIU, should be considered as part and parcel of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 

The record shows the Veteran is retired. See Hearing transcript, page 11. He has asserted his service-connected disabilities make it difficult for him to walk distances, and that he has to periodically rest; that he cannot hear; and, that his right hand cannot maintain a grip, so he drops items. Id. at 11-12. 

However, the medical evidence does not adequately discuss the functional effects of the Veteran's service-connected disabilities on employment. Because this issue has not been fully developed, appropriate adjudication is not possible at this time. On remand, the RO should conduct all appropriate notification and development, to include providing the Veteran with proper VCAA notice and affording him a VA examination to determine the effect his service-connected disabilities on his employability.  After all appropriate development has been completed, the Veteran's TDIU claim should be adjudicated based on all evidence of record.

Accordingly, the case is REMANDED to the RO/AMC for the following action:

1. The RO/AMC should issue a SOC to the Veteran, with a copy to his representative, addressing the Veteran's claim for an increased disability evaluation for peripheral neuropathy of the upper right extremity. The Veteran is advised that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim.  38 C.F.R. § 20.302(b) (2012).

2. Contemporaneously with the above, the RO/AMC should provide the Veteran with VCAA notice regarding his derivative claim for a TDIU.

3. The RO/AMC should contact the Veteran and request that he identify any additional treatment he has received for his paresthesia and numbness of the bilateral lower and left upper extremities, from June 2012 to the present. The RO/AMC should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not already in the record on appeal, to include updated treatment records from the Houston VAMC. Efforts to obtain these records should be memorialized in the Veteran's VA claim file.  If any such records cannot be found, of if they do not exist, the RO should request specific confirmation of that fact and make a formal finding of such unavailability.

4. Following completion of the foregoing, schedule the Veteran for a VA examination to determine whether the Veteran has peripheral neuropathy of the bilateral lower and left upper extremity; and if so whether the disorder is related to any incident of service or presently service-connected disorder, INCLUDING DIABETES MELLITUS. The following considerations will govern the examination:

a. The claims folder, ANY RELEVANT ELECTRONICALLY FILED MEDICAL OR OTHER RECORDS IN "VIRTUAL VA" and a copy of this remand will be reviewed by the examiner.

b. After conducting any interview with the Veteran, review of the relevant evidence, and any appropriate clinical testing, the examiner must respond to the question of whether (1) the Veteran has peripheral neuropathy of the  bilateral lower and upper left extremities, and (2) if so diagnosed, whether it is directly related to the Veteran's active duty service, or secondarily related to service because it has been caused or aggravated by a service-connected disability, to include hypertension, type II diabetes mellitus, and peripheral vascular disease. 

c. THE EXAMINER IS ADVISED that he or she must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. 

THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND OR THAT THE EXAMINER HAS EXPERTISE IN THE SUBJECT MATTER IS NOT ADEQUATE TO FIND THAT THE EXAMINATION IS SUFFICIENT. 

5. Contemporaneously with the above, a medical opinion must be obtained as to whether the Veteran's service-connected disabilities (peripheral vascular disease of the bilateral lower extremities, type II diabetes mellitus, tinnitus, hearing loss, hypertension, peripheral neuropathy of the right upper extremity, posttraumatic stress disorder, erectile dysfunction, and onychomycosis of the left great toe), either alone or in the aggregate, render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. A full explanation for the opinion must be provided.

6. Following completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should review the Veteran's entire record, and readjudicate the Veteran's service connection claims and increased disability rating claims, including the claim for a TDIU. If the benefits sought on appeal remain denied, in whole or in part, the RO/AMC should provide the Veteran and his representative with a SSOC, and allow an appropriate time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order.

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).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs