Citation Nr: 1309318	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  10-09 826 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES  

1.  Entitlement to an initial compensable rating for bilateral hearing loss.  

2.  Entitlement to service connection for dizziness, to include as secondary to service-connected tinnitus.  

3.  Entitlement to service connection for headaches, to include as secondary to service-connected tinnitus.  

4.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a right knee disability.  

5.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a left knee disability.  

6.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a right ankle disability.  

7.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a left ankle disability.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel


INTRODUCTION

The Veteran served on active duty from October 1976 to April 1988.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2009 and June 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  

The Veteran testified before a Decision Review Officer (DRO) at the RO.  A copy of the transcript has been associated with the claims file.  

In September 2010, the Veteran testified at a travel board hearing before a Veterans Law Judge who is no longer with the Board.  In December 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A copy of both transcripts have been associated with the claims file.  

This case was previously before the Board in August 2011 when the Board denied reopening the Veteran's claims of entitlement to service connection for a right knee disability, left knee disability, right ankle disability, and left ankle disability.  The Veteran appealed the Board's August 2011 decision to the United States Court of Appeals for Veterans Claims (Court).  By order dated April 2012, the Court granted a Joint Motion for Partial Remand, vacated the August 2011 Board decision, to the extent that it denied reopening the Veteran's claims of entitlement to service connection for a right knee disability, left knee disability, right ankle disability, and left ankle disability, and remanded the case for compliance with the terms of the joint motion.  

In the August 2011 decision, the Board remanded the remaining claims, entitlement to an initial compensable rating for bilateral hearing loss; entitlement to service connection for headaches, to include as secondary to service-connected tinnitus; and entitlement to service connection for dizziness, to include as secondary to service-connected tinnitus, for additional development and adjudicative action.  The case has been returned to the Board for further appellate review.  

In September 2012, the Board remanded the claims for additional development and adjudicative action.  The case has been returned to the Board for further appellate review.  

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

During the December 2012 Board hearing, the Veteran testified that he has depression due to his claimed headaches and tinnitus.  See the Board hearing transcript, p. 14.  The issue of entitlement to service connection for depression, to include as secondary to service-connected tinnitus and headaches, has not been adjudicated by the RO as Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action.  

The issue of entitlement to service connection for dizziness, to include as secondary to service-connected tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  At its worst, the Veteran has Level I hearing loss in the right ear and Level III hearing loss in the left ear.  

2.  The competent and credible evidence of record indicates that the Veteran's headaches are related to his service-connected tinnitus.  

3.  Service connection for bilateral knees and ankles was denied in a July 1993 rating decision; the Veteran did not appeal the decision.  

4.  Evidence associated with the claims file since the July 1993 rating decision is new and raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral knee and ankle disabilities.  

5.  There is an approximate balance of favorable and unfavorable evidence as to whether the Veteran's bilateral knee and ankle disabilities are caused by service.  


CONCLUSIONS OF LAW

1.  The criteria for a compensable disability evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.385, 4.1-4.14, 4.85, 4.86 Diagnostic Code 6100 (2012).

2.  The Veteran's headaches are proximately due to or the result of his service-connected tinnitus.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.310 (2012). 

3.  The July 1993 rating decision that denied entitlement to service connection for bilateral knees and ankles is final.  38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302(b), 20.1103 (2012). 

4.  The evidence received since the July 1993 rating decision is new and material, and the claims for service connection for bilateral knees and ankles are reopened.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012).

5.  Resolving all reasonable doubt in his favor, the Veteran's bilateral knee and ankle disabilities are caused by service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Introductory Matters

In this decision, the Board will discuss the relevant law 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.  38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (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).  

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. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Veteran was issued a VCAA notice letter for his service connection claims in January 2007.  This letter advised the Veteran of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence.  It also provided notice regarding the disability evaluation and effective date elements of a service connection claim.  Dingess, 19 Vet. App. at 473.  The January 2007 letter also provided notice regarding the Veteran's petition to reopen his claims for service connection for a right knee disability, a left knee disability, a right ankle disability, and a left ankle disability.  He was informed that new evidence must be evidence that was submitted to VA for the first time and that material evidence must pertain to the reason the claim was previously denied.  The January 2007 letter also explained that his claims were previously denied because there was no evidence of current diagnoses for the claimed disabilities.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  

An April 2009 letter provided notice regarding secondary service connection.  

With regard to the Veteran's claim for an initial increased evaluation for his bilateral hearing loss, 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; 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 begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id.  There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. The Veteran originally received VCAA notice for his bilateral hearing loss claim in January 2009.  

For these reasons, VA has satisfied its duty to notify.  

The duty to assist provisions of the VCAA has also been met.  The claims file contains service treatment records (STRs) and post service treatment records.  
The RO provided the Veteran with several VA examinations over the course of this appeal.  The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests.  The claims file was reviewed by the examiners.  The Board finds that the VA examination reports are probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal.  He has been given ample opportunity to present evidence and argument in support of his claims.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues have been obtained and the case is ready for appellate review.  General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012). 

Increased Evaluation Claim

The Veteran contends that his bilateral hearing loss is more severe than reflected by its initial noncompensable evaluation.  Because his hearing loss is Level I in the right ear and a Level III in the right ear, his claim will be denied. 

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 (2012).  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) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The standard of proof to be applied in decisions on claims for veterans' benefits 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.  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).  

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).  However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).  

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, 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.  Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.).  

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").  

Once a service-connected hearing 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 puretone 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).  

If the Veteran has either of two exceptional pattern of hearings 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 puretone 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.  The Veteran's puretone thresholds do not meet the standard for an exceptional pattern of hearing, and therefore Table VIa will not be used to calculate his disability.  

The Veteran underwent three VA audiological examinations over the course of this appeal.  In August 2008, his puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
20
50
LEFT
5
10
20
35
55

The average puretone threshold was 23.8 decibels in the right ear and 30 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in both ears.  The VA examiner diagnosed the Veteran with normal hearing through 3000 Hertz sloping to a moderate sensorineural hearing loss at 4000 Hertz to a severe loss between 6000 and 8000 Hertz in the right ear and normal hearing through 2000 Hertz sloping to a mild to moderate sensorineural hearing loss in the left ear.  

Applying the results of the August 2008 VA examination to Table VI of the VA regulations yields a Roman numeral value of I in both ears.  

In November 2009, the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
15
25
45
LEFT
15
15
25
45
50

The average puretone threshold was 26.3 decibels in the right ear and 33.8 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in both ears.  The VA examiner noted that the Veteran's hearing difficulty causes significant effects on his occupation.  He explained that the Veteran has difficulty hearing conversational speech in noise and would likely perform better in situations where he can see the face of the person speaking to him.  38 C.F.R. § 4.10; see Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  

Applying the results from the November 2009 VA examination to Table VI of the VA regulations yields Roman numeral value of I in both ears.  

In September 2011, the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
25
30
55
LEFT
20
15
30
45
60

The average puretone threshold was 33 decibels in the right ear and 38 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 80 percent in the left ear.  The Veteran explained that he had difficulty hearing questions and comments, as well as problems with background noise and meetings.  This was a description of the effect of his disability on his daily activities.  38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 455-56.  

Applying the results of the September 2011 VA examination to Table VI of the VA regulations yields a Roman numeral I in the right ear and a Roman numeral III in the left ear.  

Applying the values of Level I hearing loss from the August 2008 and November 2009 VA examination results in each ear to Table VII, the Board must find that the Veteran's bilateral hearing loss warrants a noncompensable evaluation.  Similarly, applying the values of Level III and Level I hearing loss from the September 2011 VA examination results in each ear to Table VII, the Board finds that the Veteran's bilateral hearing loss warrants a noncompensable evaluation, and not more.  Thus, the evidence does not support a finding of a compensable evaluation.  

The Veteran visited a private audiologist for an additional audiological evaluation in November 2008.  Audiological testing performed showed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
25
50
LEFT
15
15
20
45
50

Average puretone thresholds were 28.8 decibels in the right ear and 33 decibels in the left ear.  Unaided speech discrimination scores were reported as 92 percent in the right ear and 96 percent in the left ear.  

For the private audiological evaluation reported above, only the graphic representations of the audiograms were included in the record, with no numeric interpretation provided.  However, as the audiometric results are conveyed in a straightforward graph, the charts may be examined to determine the numeric values of the puretone levels for adjudication purposes.  See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Court held that it could not interpret the results of an audiograph because interpretation requires a factual finding, which is not the role of the Court in the first instance, and further indicated that the Board was empowered to make such factual findings in the first instance.)  

Additionally, the Board notes that under governing regulations, testing of hearing loss disability for VA rating purposes must meet specific requirements, to include speech discrimination testing in a controlled setting using a Maryland CNC word list.  There is no indication in the record that the private audiometric tests was conducted in the manner prescribed.  In fact, the November 2008 private audiological report indicates that speech discrimination testing was conducted using the MLV (monitored live voice) test.  See the November 2008 audiological report.  In Savage v. Shinseki, 24 Vet. App. 259 (2011), the Court held that when a private examination report is "unclear" or "not suitable for rating purposes" and the information "reasonably contained in the report otherwise cannot be obtained," VA has a duty to ask the private examiner to clarify the report, request that the claimant obtain the necessary information to clarify the report, or explain why such clarification was not needed.  Here, the Board finds that a remand for clarification of the audiological evaluations is not necessary, as the Board is permitted to interpret the graphical representations contained in audiograms into numerical results (see Kelly, 7 Vet. App. at 474), and based upon the results shown, it is clear that the Veteran still would not warrant a compensable rating under the rating criteria even if they were found to be suitable for rating purposes.  

Specifically, based upon the results of the November 2008 private audiological evaluation, and assuming that the speech discrimination testing was conducted in a controlled setting using a Maryland CNC word list for the audiological evaluation, a Roman numeral I is derived for the right ear and a Roman numeral I is derived for the left ear.  A noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting the applicable rows with the applicable columns. As such, considering the additional audiological evaluation, the evidence does not support a finding of a compensable evaluation for the Veteran's service-connected bilateral hearing loss.  

The provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns of hearing impairment) do not apply to the Veteran's service-connected bilateral hearing loss as the audiometric results of both of these evaluations did not show puretone thresholds of loss of 55 decibels or greater in the four relevant frequencies for either ear.  The provisions of 38 C.F.R. § 4.86(b) are also not applicable as the Veteran's hearing loss is not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz.  

As noted above, the Veteran's symptoms are not productive of, or consistent with, the criteria for a compensable rating.  The Board has duly considered staged ratings, pursuant to Hart, supra, but finds the 0 percent rating assigned is appropriate for the entire rating period.  

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 I hearing loss in the right ear and Level III hearing loss in the left 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).  

Lastly, the Court has held that a request for a total rating based upon individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a service-connected disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability.  Id.  

In this case, the Veteran has not asserted, and the evidence does not show that his bilateral hearing loss has caused unemployability.  The Veteran stated at his September 2011 neurological examination that he worked as a teacher.  Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). 

Disability ratings for hearing impairment are derived by a mechanical application of the numeric designations assigned after audiological evaluations are rendered.  Lendenmann, 3 Vet. App. at 349.  There was no indication that the audiological evaluations produced test results which were invalid or did not sufficiently address her disability picture, nor is there evidence which suggests that the hearing loss rating criteria are not adequate to address the claim.  The clinical findings establish that the preponderance of the evidence is against an initial compensable evaluation for the Veteran's bilateral hearing loss disability.  Therefore, the benefit-of-the-doubt rule is not for application.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

Secondary Service Connection Claim

The Veteran contends that his headaches are secondary to his service-connected tinnitus.  For the reasons set forth below, the Board finds that service connection is warranted.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303.  

Service connection may also be granted for disability that is proximately due to or the result of a service connected disability.  See 38 C.F.R. § 3.310(a).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service connected disability by a service connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet.App. 183, 187 (1993).  

To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service connected disability, and (3) a medical nexus evidence establishing a connection between the current disability and the service connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).  

Here, the Veteran was granted service connection for tinnitus in an April 2009 rating decision.  The record also reflects the Veteran has been assessed with headaches.  See the September 2011 VA examination report.  

The Veteran was afforded a VA examination in September 2011 in order to determine whether his headaches are related to his service-connected tinnitus.  After a review of the claims file and physical examination of the Veteran, the VA examiner assessed the Veteran with asymptomatic headaches.  The examiner noted that the Veteran's service-connected severe tinnitus and hearing loss are due to exposure to loud noises.  The VA examiner concluded that the Veteran's headaches are due to exposure to loud noises and are caused by or a result of his service-connected disability.  

Upon review, the Veteran's claims file does not contain any opinions suggesting that the Veteran's headaches are not related to his service-connected tinnitus.  The Board notes that one does not need specialized medical training to attest to the fact that one is experiencing a headache.  Accordingly, the Board finds that the Veteran is competent to attest to the fact that he experienced headaches in service and after discharge from active duty service.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Board also finds the Veteran's testimony to be credible.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for headaches as secondary to the service-connected tinnitus.  Specifically, the claims folder contains competent and credible evidence of a nexus between the Veteran's diagnosed headaches and his service-connected tinnitus.  Therefore, entitlement to service connection for headaches as secondary to service-connected tinnitus is warranted.  

New and Material Evidence Claims

Pursuant to 38 U.S.C.A. § 7105(c), a decision by the RO may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.  The exception to this rule is described under 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."  Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA.  38 U.S.C.A. §§ 5108, 7105(c); see Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial).  

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim.  Evans v. Brown, 9 Vet. App. 273 (1996).  In Evans, the Court indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance.  Id. at 284.  

In the July 1993 rating decision which denied service connection for the bilateral knees and ankles, the evidence of record consisted of the Veteran's service treatment records.  These showed several complaints and treatment for knee and ankle problems.  In December 1978, the Veteran reported to sick call with complaints of constant bilateral knee ache for two months.  He indicated that the pain was exacerbated when standing and walking.  After physical examination testing, the Veteran was assessed with knee pain, questionable etiology.  In April 1980, the Veteran returned to sick call with ongoing patella pain.  The Veteran was physically examined and diagnosed with patellafemoral pain syndrome, bilaterally.  In July 1980, the Veteran was placed on a temporary profile after spraining his right ankle, and in May 1981, the Veteran sprained his left ankle while playing volleyball at the military base gym.  The Veteran sprained his right ankle again in October 1983 after falling in a hole.  The physician diagnosed him with a resolving ankle sprain.  

The RO determined that while the Veteran was treated for bilateral knee and ankle problems in service, there was no medical evidence demonstrating that the Veteran had bilateral knee and ankle disabilities since the date of his discharge to the present.  In the absence of current diagnoses for the claimed disabilities of the bilateral knees and ankles, the RO concluded that service connection for bilateral knees and ankle disorders was to be denied.  The Veteran was properly notified of the July 1993 rating decision in August 1993, but did not enter a notice of disagreement (NOD) within one year of notice of the July 1993 rating decision.  Consequently, that decision became final based on the evidence of record at that time.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.  

New and material evidence to reopen the claims for service connection for bilateral knee and ankle disabilities has been received.  Since the July 1993 rating decision, the Veteran has submitted two private medical statements dated August 2010 and October 2010, results from VA examinations conducted in March 2009 and November 2009, lay statements from May 2009 to April 2012, and testimony during a DRO hearing dated October 2009 and Board hearings dated September 2010 and December 2012.  

The Veteran testified at the DRO and Board hearings that his bilateral knee and ankle disorders originated in service.  He explained that he initially injured his knees during a special weapons and tactics training exercise after performing a maneuver called the "spider crawl."  He explained that he performed the maneuver on a roof and the roof edging broke, which caused him to fall and land on his knees.  The Veteran testified that he continued to injure his knees thereafter.  He also indicated that he incurred numerous ankle sprains during his military service because of his weight.  The Veteran explained that he had to run in order to meet weight standards, and the overall constant wear and tear on his knees and ankles has caused his current disabilities.  

The March 2009 and November 2009 VA examination reports contain diagnoses of osteoarthritis of the knees and ankles.  In August 2010 and October 2010 statements, a private physician diagnosed the Veteran with arthrosis of the knees, Achilles tendinitis, posterior tib tendinitis, and plantar fasciitis.  The private physician stated that the Veteran's bilateral knee and ankle disabilities are "as likely as not" related to the injuries sustained in service.  The lay statements submitted from fellow service buddies recall the Veteran injuring his knees after falling in both a "slide for life" training exercise and zip line extraction exercise.  

This evidence is new because it has not been previously submitted.  The Veteran is competent to describe observable symptomatology.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Further, his DRO and Board hearing testimony is presumed credible for the limited purpose of reopening his claims.  Justus, 3 Vet. App. at 513.  Additionally, the Veteran has current diagnoses for his claimed bilateral knee and ankle disorders, and both a private physician and VA examiner have rendered opinions as to the etiology of his current bilateral knee and ankle disorders.  The private medical statements and the VA examination reports are also material because they relate to the fact he has current disabilities for the claimed disorders, which is the reason his claims were previously denied.  

Reopening of the Veteran's the claims based on the receipt of new and material evidence is therefore warranted and are addressed below.  Shade v. Shinseki, 24 Vet. App. 110 (2011)(holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening").  

Service Connection Claims

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Service connection for certain "chronic diseases" (including arthritis) may be granted if manifest to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309(a).  Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012). 

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.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumptive period and still has such condition.  Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent.  Savage v. Gober, 10 Vet. App. 488, 498 (1997).  In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection.  38 C.F.R. § 3.303(b).  

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the clam or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

As previously stated, service treatment records reflect complaints, treatment, and diagnoses of bilateral knee and ankle disorders during service.  Beginning in December 1978, the Veteran reported to sick call with complaints of constant bilateral knee ache for two months.  He indicated that the ache was exacerbated by standing and walking with no swelling.  Observation of the Veteran revealed an overweight man with a normal gait and no signs of edema or erythema relating to the knees.  The knees were also non tender, stable, and demonstrated full range of motion.  The Veteran was assessed with knee pain, questionable etiology.  In April 1980, the Veteran returned to sick call with patella pain and indicated that the pain had been ongoing for approximately two years.  The Veteran admitted to the knees locking and becoming painful.  After physical examination testing, the Veteran was diagnosed with patellofemoral pain syndrome, bilateral.  In regards to the Veteran's ankles, the Veteran was placed on a temporary profile after spraining his ankle in July 1980.  Physical examination testing showed decreased range of motion, swelling on the lateral malleolus and moderate erythema.  In May 1981, while playing volleyball at the military base gym, the Veteran incurred trauma to his left ankle.  He was assessed with a strain to the left ankle.  In October 1983, the Veteran reported to sick call after falling in a hole and twisting his right ankle.  He complained of persistent pain and swelling.  After physical examination testing, the Veteran was diagnosed with a resolving ankle sprain.  

After discharge from service, post service treatment records show continuing complaints and diagnoses for the Veteran's bilateral knee and ankle disabilities.  At a March 2009 VA examination, the Veteran reported injuring his knees after undergoing advanced training for security and law enforcement, especially after performing a training mission involving  a "spider crawl" along the wall of a building.  Since that time, the Veteran admitted that his bilateral knee disorder has progressively worsened.  In regards to the bilateral ankle disorder, the Veteran informed the examiner that running daily while serving in the security forces caused him to suffer repeated bilateral ankle sprains.  The Veteran stated that his bilateral ankle disorder has progressively worsened, which has prevented him from walking long distances.  After physical examination testing, the VA examiner diagnosed the Veteran with osteoarthritis of the knees and ankles.  

After a full review of the record, including service treatment records, post service treatment records, and the Veteran's contentions, the Board finds that the evidence is in equipoise and service connection for the bilateral knee and ankle disabilities is warranted.  

In October 2009, the Veteran was afforded a VA examination to determine the etiology of the claimed bilateral knee and ankle disorders.  The Veteran reported that multiple knee and ankle injuries in service contributed to his current bilateral knee and ankle complaints.  After physical examination of the Veteran, the VA examiner diagnosed the Veteran with degenerative arthritis of the knees and ankles.  After review of the claims file and results from the physical examination, the VA examiner concluded that it is less likely as not that the Veteran's bilateral knee and ankle disabilities were caused by or a result of service.  The VA examiner stated that while the Veteran has documented occasional injury of his bilateral knees and ankles in his 12 years of military service, he also admitted to gaining a significant amount of weight after discharge from service.  The VA examiner explained that obesity causes osteoarthritis by increasing the mechanical stress on the cartilage, and obesity is the most powerful risk factor for osteoarthritis of the knee.  

The evidence in the Veteran's favor consists of two private medical opinions dated August 2010 and October 2010 from J.S., M.D.  In the August 2010 private medical opinion, Dr. J.S. indicated that he evaluated the Veteran for his bilateral knee problems.  The Veteran reported having multiple injuries to both knees while in the military and jumping out of multiple airplanes put a great deal of stress on both knees.  He informed the physician that since discharge from service, he has endured ongoing knee problems.  After physical examination and x-ray testing, Dr. J.S. diagnosed the Veteran with arthrosis primarily affecting his patellofemoral compartments of both knees.  Dr. J.S. also indicated that he reviewed copies of the Veteran's service treatment records, which reflect complaints of bilateral patellar pain.  Based on a review of the service treatment notes, a review of his studies, and physical examination of the Veteran, he opined that "it is as least as likely as not" that his bilateral knee disability is related to his military service because service treatment records document knee pain since 1978.  Turning to the bilateral ankle disorder, Dr. J.S. evaluated the Veteran for such disorder in October 2010.  According to the October 2010 private medical report, the Veteran informed Dr. J.S. of his bilateral ankle problems after incurring multiple injuries during his military service.  Since that time, the Veteran admitted to having difficulty with the ankles for over the past 30 years.  After physical examination and x-ray testing, Dr. J.S. diagnosed the Veteran with bilateral ankle pain with symptoms consistent with Achilles tendinitis, posterior tib tendinitis and plantar fasciitis.  Dr. J.S. also reviewed copies of the Veteran's service treatment records, noting ankle sprains in 1978, 1980, and 1981.  Based on a review of the service treatment notes, a review of his studies, and physical examination of the Veteran, he opined that "it is as likely as not" that his bilateral ankle disability is related to his military service because service treatment records document multiple injuries to his ankles while in service.  

There need not be a certainty of probative evidence in order for a claim to be granted. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet.App. 52 (1993); see also Massey v. Brown, 7 Vet.App. 204 (1994). 

There is conflicting yet informed and competent medical evidence  as to whether the Veteran's bilateral knee and ankle disabilities are caused by his military service.  However, no apparent basis exists for rejecting either opinion.  There is an approximate balance of the positive and negative evidence.  The evidence is in relative equipoise.  

Resolving any doubt in the Veteran's favor, service connection for the Veteran's bilateral knee and ankle disabilities is granted.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

An initial compensable evaluation for bilateral hearing loss is denied.  

Service connection for headaches as secondary to the service-connected tinnitus is granted.  

New and material evidence having been received, the claim for service connection for a right knee disability is reopened.  

New and material evidence having been received, the claim for service connection for a left knee disability is reopened.  

New and material evidence having been received, the claim for service connection for a right ankle disability is reopened.  

New and material evidence having been received, the claim for service connection for a left ankle disability is reopened.  

Service connection for a right knee disability is granted.  

Service connection for a left knee disability is granted.  

Service connection for a right ankle disability is granted.  

Service connection for a left ankle disability is granted.  



REMAND

The Board finds that this appeal must be remanded to obtain an adequate examination that complies with the directives of the August 2011 remand.  A Court or Board remand confers upon the appellant the right to compliance with that order.  Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).  Additionally, where VA provides the Veteran an examination in a service connection claim the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  An adequate examination and medical opinion addresses the appropriate theories of entitlement and provides a supporting rationale for any medical opinion.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007).  

When the matter was before the Board in August 2011, a remand was ordered.  The remand directed that an examination of the Veteran be conducted to determine whether the Veteran's dizziness is secondary to his service-connected tinnitus.  Specifically, it was requested that the VA examiner determine the nature and etiology of his dizziness, if any, including whether it is at least as likely as not that his dizziness is related to his service in the military, including his service-connected tinnitus.  See the August 2011 Board remand.  

While the Board notes that the Veteran was afforded a VA neurological examination in September 2011, the examiner did not address whether the Veteran experienced dizziness and if so, whether it is related to his service-connected tinnitus.  For these reasons, the August 2011 examination is inadequate and another remand is required so that an adequate opinion may be obtained.  See 38 C.F.R. § 4.2; see also Stegall v. West, 11 Vet. App. 268 (1998).  

To ensure that VA has met its duty to assist the Veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is again REMANDED for the following action:

1.  Arrange for a neurological examination of the Veteran by an appropriate health care provider to determine the nature and etiology of his dizziness.  The claims folder should be made available and reviewed by the health care provider prior to the evaluation.  The following considerations will govern the evaluation: 

a.  The claims folder and a copy of this remand will be made available to the examiner for review in conjunction with the opinion, and the examiner must specifically acknowledge receipt and review of these materials in any report generated.  

b.  After reviewing the claims file and examining the Veteran, the examiner must provide an opinion on whether the Veteran currently has dizziness that was caused or aggravated beyond normal progression by his service-connected tinnitus.  

c.  In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record.  If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state.  However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion.  

2.  Thereafter, the issue on appeal should be readjudicated.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.  

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

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



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


Department of Veterans Affairs