Citation Nr: 1309845	
Decision Date: 03/22/13    Archive Date: 04/01/13

DOCKET NO.  10-07 554	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial compensable disability rating for bilateral hearing loss prior to September 25, 2012, and in excess of 30 percent thereafter.  

2.  Entitlement to service connection for coronary artery disease (CAD), to include as secondary to herbicide exposure.

3.  Entitlement to service connection for service connection for hypertension, to include as secondary to anxiety. 

4.  Entitlement to service connection for erectile dysfunction, to include as secondary to anxiety, and coronary artery disease.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. R. dela Rosa, Associate Counsel


INTRODUCTION

The Veteran served with the Army National Guard and Reserves between January 1952 and November 1981, which included various periods of active duty for training (ACDUTRA).  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.   

The Board remanded the case in May 2012.  In a December 2012 rating decision, the RO granted an increased ratings for bilateral hearing loss from a non-compensable level to 30 percent, effective September 25, 2012.  However, that increase does not represent a total grant of benefits sought on appeal.  Applicable law provides that a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned for the service-connected bilateral hearing loss, therefore, the issue remains in appellate status.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).





FINDINGS OF FACT

1.  The Veteran's hearing loss disability was manifested by Level I hearing in both ears in December 2008, and Level V hearing in his right ear and Level VIII hearing in his left ear when examined in September 2012.   

2.  The Veteran's coronary artery disease had its onset many years after active duty service, was not first shown during a period of active duty, and the evidence does not show that it is related to any disease, injury or event in service.

3.  The Veteran's hypertension had its onset many years after active duty service, was not first shown during a period of active duty, and the evidence does not show that it is related to any disease, injury or event in service.

4.  The Veteran's erectile dysfunction had its onset many years after active duty service, was not first shown during a period of active duty, and the evidence does not show that it is related to any disease, injury, or even in service.  


CONCLUSIONS OF LAW

1.  The criteria for a compensable disability rating for bilateral hearing loss prior to September 25, 2012, and in excess of 30 percent thereafter, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2012).  

2.  Coronary artery disease was not incurred during active military service and may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

3.  Hypertension was not incurred during active military service and may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).

4.  The criteria for service connection for erectile dysfunction are not met.  38 U.S.C.A. §§ 1110, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2012).  This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2008 - prior to the initial RO decision in this matter - that addressed the notice elements.  The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  This notice informed the Veteran of all of the elements of how service connection is established, including how VA assigns disability ratings and how an effective date is established.  See Dingess, 19 Vet. App. 473.  

With respect to hearing loss, the Board notes that the Veteran is challenging the initial evaluation assigned following the grant of service connection for bilateral hearing loss.  The United States Court of Appeals for Veterans Claims (Court) has held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the service connection claim has been more than substantiated, the claim has been proven.  This renders § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See generally Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

With respect to the duty to assist, the RO has obtained and associated with the claims file the Veteran's service treatment records, records of his post-service VA treatment, and private medical records.  In its May 2012 Remand, the Board requested the Veteran be given the opportunity to provide additional information, which was accomplished.  (The Veteran did not respond to the request.)  The Board also asked the Veteran undergo an examination of his hearing loss.  This examination occurred in September 2012.  Thus, there was substantial compliance with the Board's remand, and the Board may proceed with adjudicating the issues based on the record. 

The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

Increased rating - Bilateral hearing loss

Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder.  38 U.S.C.A. § 1155 (West 2002).  Separate rating codes identify the various disabilities.  38 C.F.R. Part 4 (2012).  In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records.  38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85, Diagnostic Code 6100.

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.87. 

The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86.  A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.  

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  

In December 2008, the Veteran was evaluated for complaints of hearing loss.  The audiologist determined that the Veteran had mild to moderately severe sensorineural from 1000 Hertz to 8000 Hertz in the right ear and mild to severe sensorineural from 250 Hertz to 8000 Hertz in the left ear.  His word recognition was 96 percent in the right ear and 100 percent in the left ear.  Puretone threshold in decibels at the indicated frequency were as follows.  

HERTZ
1000
2000
3000
4000
RIGHT
30
25
40
50
LEFT
40
40
55
60
      
Puretone threshold averages were 36.25 in the right ear, and 48.75 in the left ear.  These findings correspond to Level I in both ears, which in turn corresponds to a non-compensable disability rating.  38 C.F.R. § 4.85, Tables VI and VII.  

In September 2012, the Veteran was accorded a disability benefit questionnaire (DBQ) audiology examination.  Audiology testing found mixed hearing loss in both ears.  Testing results were as follows:

HERTZ
1000
2000
3000
4000
RIGHT
65
65
65
70
LEFT
75
90
90
100
      
Speech recognition scores were 92 percent in the right ear and 82 percent in the left ear.  Puretone threshold averages were 66.25 for the right ear and 88.75 for the left ear.  These findings correspond to Level II hearing in the right ear and Level V hearing in the left ear, which in turn corresponds to a 10 percent disability rating.  38 C.F.R. § 4.85, Tables VI and VII.  However, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is shown.  Under 38 C.F.R. § 4.86, the findings correspond to Level V in the right ear and Level VIII in the left ear, which in turn corresponds to a 30 percent disability rating.  

The foregoing evidence does not support a compensable rating prior to September 2012, or a compensable evaluation in excess of 30 percent after that date.  Accordingly, the Veteran's claim for an initial compensable disability rating prior to September 25, 2012, and in excess of 30 percent thereafter must be denied. 

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

The Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss disability.  The Veteran's service-connected bilateral hearing loss disability is productive of difficulty hearing, especially in a noisy place, a manifestation that is contemplated in the rating criteria.  The rating criteria are therefore adequate to evaluate the Veteran's bilateral hearing loss disability and referral for consideration of extraschedular rating is not warranted.

Finally, where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  TDIU may be a part of a claim for increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the Veteran has not alleged that he was unemployable during the course of the appeal due to the service-connected disability.  Moreover, there is no evidence of unemployability due to it, accordingly, TDIU is not raised by the record.

Service connection 

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  When a chronic disease identity is established in service, then a showing of continuity after discharge is not required.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b) (2012).  

Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

Some chronic diseases, such as cardiovascular-renal disease (including hypertension), may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the date of separation from service.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).  

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309.  A disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.309.  The list of diseases includes:  chloracne or other acneform disease consistent with chloracne, type 2 diabetes, Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) 

Service connection also is warranted for a disability which is aggravated by, proximately due to, or the result of, a service- connected disability.  38 C.F.R. § 3.310.  

Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves.  38 U.S.C.A. § 101(23)(A). 
Reserves include the National Guard.  38 U.S.C.A. § 101(26), (27).

Thus, with respect to the Veteran's Army National Guard and Reserves service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA.  38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304.  Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process.  See Brooks v. Brown, 5 Vet. App. 484, 487 (1993).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  

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

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

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Coronary artery disease

The Veteran maintains that his coronary artery disease is a result of exposure to herbicides in Vietnam while participating in flights to and from Vietnam to return the bodies of American service personnel for burial.  The Veteran has not asserted that coronary artery disease is otherwise related to active service.  

Service treatment records (STRs) show no complaints of, treatment for, or a diagnosis of coronary artery disease.  The earliest record documenting the presence of CAD is dated many years after service, and these fail to link the disability to service.  For his part, the Veteran is not shown to be competent to provide an etiological opinion for CAD, and any assertion of his in this regard is of no probative value.  

With respect to Vietnam service, the Veteran's service records, which would document any such service, fail to do so.  Since the Board considers those documents of greater probative value than the Veteran's assertions of Vietnam service, (and he has not provided any particulars concerning the dates of such service, or the units with which he served, and he actually denied serving in Vietnam in his 2008 VA application for compensation), the benefit of the presumption of herbicide exposure does not attach in this case.  Given that conclusion, service connection for CAD may not be presumed based on in-service herbicide exposure.  

Since the record fails to show the Veteran served in Vietnam; it fails to show the presence of CAD for many years after service; and there is no probative evidence linking CAD to service, a basis upon which to establish service connection for CAD has not been presented.  





Hypertension

The Veteran's STR's document a number of occasions when his blood pressure was elevated.  However, at no time do they reflect a diagnosis of hypertension, and a September 2012 DBQ examination report characterizes these readings as failing to meet the diagnostic criteria for the diagnosis of hypertension.  Hypertension is not documented for many years after service, and no competent evidence links it to service.  Under these circumstances, the evidence fails to support the conclusion that hypertension was incurred in service.  

With respect to the contention that hypertension is secondary to CAD or anxiety, since those disabilities are not service connected, this theory of entitlement does not provide a basis for awarding benefits.  

Erectile dysfunction

Regarding erectile dysfunction (ED), there are no records of any treatment for this complaint, but at the 2012 DBQ examination, the Veteran advised it began in 1999.  As this is many years after service, and no competent evidence links its incurrence to service, there is no basis for concluding that it was incurred in service.  Similarly, since the Veteran is not service connected for CAD, anxiety or hypertension, (which the DBQ examiner advised can cause ED), there is no basis for awarding service connection for ED as secondary to these problems.  

In sum, as the weight of the probative evidence is against the Veteran's claims, coronary artery disease, to include as secondary to herbicide exposure; hypertension, to include as secondary to anxiety; and erectile dysfunction to include as secondary to coronary artery disease and/or hypertension are denied.  38 C.F.R. §§ 3.102, 3.303, 3.304.  The Board has considered the doctrine of reasonable doubt, but for the reasons just expounded, finds it to be inapplicable, as the record does not provide an approximate balance of negative and positive evidence on the merits.  38 C.F.R.  § 3.102.  


ORDER

An initial compensable disability rating for bilateral hearing loss prior to September 25, 2012, and in excess of 30 percent thereafter is denied.  

Service connection for coronary artery disease (CAD), to include as secondary to herbicide exposure is denied.

Service connection for service connection for hypertension, to include as secondary to anxiety is denied. 

Service connection for erectile dysfunction, to include as secondary to anxiety, and coronary artery disease is denied.  




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals






Department of Veterans Affairs