Citation Nr: 1310259	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  09-23 655	)	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 disorder. 

2. Entitlement to an initial evaluation higher than 10 percent for bilateral       hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARINGS ON APPEAL

The Veteran





ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty from February 1956 to January 1958.         

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 & Supp. 2012).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, granting service connection for bilateral hearing loss, and denying service connection for a bilateral knee disorder.             The Veteran appealed the decision, including the initial assigned evaluation for bilateral hearing loss. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection).  

Two hearings were held in this matter, a March 2011 proceeding before an RO Decision Review Officer (DRO), and a July 2012 Travel Board hearing before the undersigned Veterans Law Judge. The hearing transcripts are on file.

The Board previously remanded this case for specified evidentiary development in September 2012. 

The issue of service connection for a bilateral knee disorder 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. VA will notify                  the Veteran if further action is required on his part. 

FINDING OF FACT

The Veteran's bilateral hearing loss has been manifested by no worse than numerical designations of Level V in the right ear, and Level IV in the left ear. 


CONCLUSION OF LAW

The criteria are not met for an initial evaluation in excess of 10 percent for bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duty to Notify and Assist the Claimant

The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A.    §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)     must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 CFR 3.159(b)(1).

In regard to the service-connected hearing loss disability, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). The claim for service connection for bilateral hearing loss has been substantiated, and no further notice addressing the downstream disability rating requirement is necessary. 

The RO (including through the AMC) has taken appropriate action to comply with the duty to assist the Veteran through arranging for him to undergo VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). This includes the most recent VA examination of January 2013, following the Board's September 2012 remand directive requesting a more contemporaneous audiological examination. The Veteran testified at DRO and Travel Board hearings. There is no indication of any further relevant information or evidence that must be associated with the record, including any pertinent outpatient treatment records from VA or private treatment sources. The record as it stands includes sufficient competent evidence to decide  the claim. Under these circumstances, no further action is necessary to assist the Veteran.

In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. 


Background and Analysis

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. 
§ 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1.

Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, supra, at 125-26.

Under the applicable criteria disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 percent to         100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz.  

The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.    VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.                The vertical lines 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 horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level V and the poorer ear has a numeric designation Level VII, the percentage evaluation is            30 percent. See 38 C.F.R. § 4.85.

The Veteran underwent VA Compensation and Pension examination by an audiologist in September 2007, in which he described recent hearing difficulties and having used hearing aids for six years. The functional impairment consisted of difficulty hearing normal conversational speech. A history of both in-service and possible post-service noise exposure was indicated. Upon audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
40
70
80
LEFT
15
25
30
65
80


Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 78 percent in the left ear. The diagnosis given was bilateral mild to profound sensorineural hearing loss above 1 kilohertz. The audiometric test results were considered to support the reported hearing loss. The examiner commented further that the Veteran if treated, the Veteran's sensorineural hearing problem would not cause a change in the hearing threshold level. 

On re-examination in April 2011, the Veteran complained of continued hearing loss, and described his situations of greatest difficulty as problems understanding   in noise and on the phone, and having to ask friends to repeat what they say.            He indicated he could not hear without hearing aids. Audiological evaluation revealed pure tone thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
50
75
80
LEFT
25
35
35
70
80

Speech audiometry revealed speech recognition ability of 70 percent in the right ear and of 80 percent in the left ear. Bilateral sensorineural hearing loss was diagnosed. According to the VA examiner, hearing was not anticipated to change with medical intervention.

On further examination in January 2013, an audiogram revealed as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
55
75
80
LEFT
20
35
40
70
80

Speech audiometry revealed speech recognition ability of 78 percent in the right ear and of 86 percent in the left ear. Bilateral sensorineural hearing loss was diagnosed. The VA examiner further commented that given the degree and configuration of  the Veteran's hearing loss, he would likely experience mild to moderate communication difficulties without the use of hearing aids, particularly in background noise and in group communication. The examiner noted that she herself was able to communicate well with the Veteran in a quiet environment. The Veteran had excellent word recognition abilities indicating good benefit from the use of hearing aids. The examiner reported that while the Veteran's hearing loss likely resulted in communication difficulties in noisy environments without the use of hearing aids, it did not render him unable to secure and maintain substantially gainful physical or sedentary employment. With the use of hearing aids, the Veteran would likely perform well even in mild to moderate background noise. 

Based upon these clinical findings and in light of the rating criteria, the claim will be denied. The Board has reviewed each VA Compensation and Pension examination and when considering the most pronounced audiometric test results and speech discrimination scores, from the April 2011 VA examination, these findings correspond to the continuation of a 10 percent evaluation. The April 2011 VA examination establishes no worse than Level V right ear hearing loss and Level IV left ear hearing loss, pursuant to 38 C.F.R. § 4.85, Table VI. When these two designations are combined under Table VII, the rating table for hearing impairment, the result is a 10 percent disability evaluation. 

The bilateral hearing loss demonstrated through the VA examination does not demonstrate an "exceptional pattern" of hearing impairment, such that the respective Level designations of hearing loss could be made based entirely on audiometric test findings, without inclusion of speech recognition scores. See 38 C.F.R. § 4.86 (outlining circumstances under which VA will adjudicate claims involving exceptional patterns of hearing impairment). 

The Board is bound to apply the provisions of the rating criteria. See 38 U.S.C.A. § 7104(c). In summary, upon application of the available rating criteria, a compensable evaluation for bilateral hearing loss cannot be substantiated.       



The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 

In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The Veteran's bilateral hearing loss does not present such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the applicable rating criteria are thorough, and he does not manifest nor describe symptomatology outside of that criteria. Martinak v. Nicholson, 21 Vet. App. 447, 453-54 (2007) (determining that the procedure of audiometric testing in a sound-controlled room, contrary to the claimant's assertions, was sufficient for rating purposes). The schedular rating criteria are not inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. 

The January 2013 VA examiner indicated that the Veteran's hearing loss likely resulted in communication difficulties in noisy environments, but did not render him unemployable, and moreover, the Veteran would likely perform much better in noisy environments provided he were to use hearing aids. In addition to  the absence of marked impact upon occupational functioning, the Veteran's service-connected disorder also has not necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

For these reasons, the Board is denying the claim for a higher initial rating for bilateral hearing loss. This determination takes into full account the potential availability of any "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review.             The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).     


ORDER

An initial evaluation higher than 10 percent for bilateral hearing loss is denied.


REMAND

The Veteran's service treatment records (STRs) are considered destroyed due to a 1973 fire at the National Personnel Records Center (NPRC). In situations where service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).               



The existing VA Compensation and Pension examination and opinion of           January 2013 is not sufficient to address the circumstances of this case.  The Veteran has consistently alleged that he injured his knees during training exercises while on a tank when the gun turret spun around and twice hit into his lower body. The Veteran's own assertions are key to establishing any relevant in-service injury, given the missing status of his STRs and thereby documentation of treatment. Generally, a competent and credible lay witness statement may establish in-service injury for purposes of further medical inquiry. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). While the January 2013 VA examination provided an opinion ruling out a causal nexus between present-day disability and military service, the examination report nonetheless does not acknowledge having considered the Veteran's own account of in-service injury, or otherwise the lay statements of other individuals attesting to that injury. A supplemental opinion from the January 2013 examiner must be obtained.

Accordingly, this claim is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)

1. The RO/AMC should return the claims folder to        the examiner who conducted the VA examination of         January 2013 and request a supplemental opinion.           The VA examiner is requested to again review the contents of the Veteran's claims file, to specifically include: (1) the Veteran's July 2012 Board hearing testimony regarding his claimed in-service injury          (on pages 2-3 of the hearing transcript); (2) the lay witness statements of the other individuals who attested to        the Veteran's in-service injury; (3) any new medical documentation that has been received. The VA examiner is then requested to opine on whether the Veteran's present bilateral knee disorder is etiologically related to an incident of military service, taking into account his own competent lay assertions of in-service injury, as well as the medical documentation on file. 

If the January 2013 VA examiner is not available, or is no longer employed by VA, obtain a medical opinion from another examiner that addresses the inquiry set forth above regarding the disability claimed.

2. The RO/AMC should then review the claims file.          If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West,           11 Vet. App. 268 (1998).

3. Thereafter, the RO/AMC should readjudicate the claim for service connection for a bilateral knee disorder based upon all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before  the file is returned to          the Board for further appellate consideration.

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

No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. 


The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655. 

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