Citation Nr: 1311919	
Decision Date: 04/10/13    Archive Date: 04/19/13

DOCKET NO.  06-11 965	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to an initial compensable disability rating for bilateral hearing loss from May 24, 2005 to July 25, 2012.

2.  Entitlement to a disability rating in excess of 10 percent since July 26, 2012 for bilateral hearing loss.  

3.  Entitlement to service connection for a bilateral testicular condition.

4.  Entitlement to service connection for a low back condition.


REPRESENTATION

Appellant represented by:	The American Legion



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Tiffany Berry, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from February 1976 to September 1978. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

In April 2009, the Board remanded this case to the RO, via the Appeals Management Center (AMC) in Washington, D.C., to accommodate the Veteran's request for a Travel Board hearing.  

In August 2009, the Veteran testified before the undersigned at a Travel Board hearing held at the St. Louis RO.  The hearing transcript is associated with the claims folder. 

The Board again remanded this case to the RO in February 2011 for additional development and consideration.  In August 2012, the RO granted the Veteran's claim of entitlement to service connection for tinnitus, and assigned an initial 10 percent disability rating, effective from May 24, 2005.  He did not perfect an appeal to the Board concerning the initial ratings and/or effective date assigned for his service-connected tinnitus.  Thus, this claim is not presently before the Board.  See 38 U.S.C.A. § 7105(a) (2002); 38 C.F.R. § 20.200 (2012); and Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).

Also in the August 2012 rating decision, the RO increased the Veteran's disability rating to 10 percent for his bilateral hearing loss, effective from July 26, 2012, the date of his most recent VA audiological examination.  This increase during the appeal did not constitute a full grant of the benefit sought.  Therefore, the Veteran's claim for an increased rating for his bilateral hearing loss remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 39 (1993). 

The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims, which has been reviewed and considered.  

A July 2012 statement from the Veteran raises the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to a service connection for a head injury, to include headaches.  This claim has not been adjudicated by the RO.

In May 2007, the Veteran requested that his service connection claim for a bilateral testicular disorder be considered under 38 U.S.C.A. § 1151.  In September 26, 2008, the RO sent the Veteran a letter explaining that his claim of entitlement to compensation pursuant to § 1151 for a bilateral testicle disorder was inextricably intertwined with the claim of entitlement to service connection for a bilateral testicular condition, which was in appellate status, and that a decision could not be made by the RO on the § 1151 claim until the service connection claim was resolved by the Board.  In the April 2009 Board remand, the issue was referred to the St. Louis RO for appropriate action.  However, it does not appear that any action was taken on the claim.  In December 2012, the Veteran's representative submitted a brief stating the Veteran was withdrawing his claim of entitlement to service connection for a bilateral testicle disorder and requesting that the Board notify the RO to proceed with the 1151 claim.  

The issues of whether new and material evidence has been received to reopen a claim for a head injury, to include headaches, and a claim for compensation for injury to the bilateral testicles under 38 U.S.C.A. § 1151 have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Accordingly, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action.  

The issue of entitlement to service connection for a low back disorder is addressed in the remand portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC.


FINDINGS OF FACT

1.  On December 19, 2012, the Veteran's representative submitted an Appellate Brief, prior to the promulgation of a decision in the appeal, indicating that the Veteran withdrew his appeal as to the issue of entitlement to service connection for a bilateral testicle disorder.  

2.  The report of the October 2005 VA audiological compensation examination shows the Veteran has had, at worst, Level I hearing in the right and left ears. 

3.  A VA audiogram, dated November 2010 is inadequate for rating purposes as it does not use the Maryland CNC test for speech recognition testing.  

4.  The results of the July 26, 2012 VA audiological evaluation show the Veteran has, at worst, Level VI hearing in the right ear and Level III hearing in the left ear, and supports assigning the higher 10 percent disability rating as of July 26, 2012.  



CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a bilateral testicular disorder are met.  38 U.S.C.A. 
§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  The criteria are not met for an initial compensable disability rating for bilateral hearing loss for the period from May 24, 2005, to July 25, 2012.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).

3.  The criteria for a disability rating higher than 10 percent for bilateral hearing loss since July 26, 2012, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

As an initial matter, the Board notes the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable with respect to the withdrawal of the claim for service connection for a bilateral testicular disorder.  

As to the issues remaining on appeal, the Veteran's appeal arises from his disagreement with the initial evaluation following the grant of service connection for bilateral hearing loss.  Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained.  The Veteran's service treatment records, VA treatment records, and Social Security Administration (SSA) records have been obtained.  He has not indicated there are any additional records that VA should seek to obtain on his behalf.  He also was provided with VA examinations in October 2005 and July 2012.  

In February 2011, the Board remanded this case in order for the Veteran to undergo a contemporaneous VA audiological evaluation because he was last evaluated in October 2005 in connection with his initial claim for service connection.  The Veteran underwent this requested examination in July 2012.  The Board finds that the July 2012 examination is adequate to evaluate the Veteran's bilateral hearing loss, as it includes an interview with the Veteran, a review of the record, and a full objective physical examination, addressing the relevant rating criteria, and any functional effects of the Veteran's hearing loss on his daily activities.  Thus, the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Further, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In any event, in this case, the July 2012 VA examination report specifically addresses the effect of the Veteran's hearing loss on his occupation and daily activities.  Thus, the Board finds that the examination is adequate. 

Further, the Veteran has not alleged, nor does the record show, that his service-connected hearing loss has worsened in severity since the most recent examination.  As such, a new examination is not required.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). 

The Veteran has been afforded a hearing before an Acting Veterans Law Judge (AVLJ) in which he presented oral argument in support of his bilateral hearing loss claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the AVLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  

Here, during the hearing, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim, such as additional treatment records indicating a worsening in the Veteran's hearing loss.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has either one identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record.  

Therefore, the Board finds that there has been substantial compliance with the February 2011 remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Board may proceed to the merits of his claim.

Withdrawal Of Appeal

On December 19, 2012, the Veteran's representative submitted an Appellate Brief indicating that the Veteran withdrew his appeal over the phone as to the issue of entitlement to service connection for a bilateral testicle disorder.  

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

The Board finds that the representative's written statement indicating the Veteran's intention to withdraw his appeal concerning the claim of entitlement to service connection for a bilateral testicular disorder satisfies the requirements for the withdrawal of a substantive appeal.  See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993).  

As the Veteran has withdrawn his appeal of entitlement to service connection for a bilateral testicular disorder, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this claim on appeal and it is dismissed. 

Increased Rating

The Veteran's hearing loss was initially rating at 0 percent, from May 24, 2005 to July 25, 2012, and increased to 10 percent, effective from July 26, 2012.  The Veteran argues his hearing loss is more severe than his disability ratings reflect.  

Since the Veteran's claim arises from his disagreement with the initial rating assigned following the granting of service connection in December 2005 for his bilateral hearing loss, some discussion of the Fenderson case is warranted.  Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).  In Fenderson, the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case, as here, in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been service connected.  In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance.  See also, however, Hart v. Mansfield, 21 Vet App 505 (2007) (a decision of the Court holding that, in determining the present/current level of disability for any increased-evaluation claim, the Board must consider whether the rating should be "staged").  Similarly, in the latter Fenderson scenario, where, as here, the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA also must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim -a practice known as "staged rating."  Fenderson, 12 Vet. App. 125-126.

As stated, the Veteran's bilateral hearing loss was originally evaluated as noncompensable (i.e., 0 percent), effective from May 24, 2005, the date of receipt of his claim.  As noted, this initial rating since was increased to 10 percent as of July 26, 2012, the date of a VA compensation examination indicating a worsening of his hearing acuity.  In deciding this claim, the Board has to consider whether he was entitled to a rating higher than 0 percent from May 24, 2005, to July 25, 2012, and whether he has been entitled to a rating higher than 10 percent since July 26, 2012.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on 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 (2012).

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10 (2012).

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

In making these determinations for a hearing loss claim, it is important for the Veteran to understand that the assignment of disability ratings for hearing impairment are derived by a mechanical, i.e., nondiscretionary application of the rating schedule to the numeric designations based on the examination results.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Evaluations of bilateral hearing loss range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 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.

Under 38 C.F.R. § 4.85, 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 based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect.  38 C.F.R. § 4.85(b).  The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4.  This average is used in all cases to determine the Roman numeral designation for hearing impairment.  38 C.F.R. § 4.85(d).

Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing.  The percentage evaluation is located at the point where the rows and column intersect.  38 C.F.R. § 4.85(e).

VA regulations also provide that, in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

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

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

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

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

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

For the Period from May 24, 2005, to July 25, 2012

As an initial matter, VA treatment records for this period on appeal are associated with the claims file.  However, these treatment records do not contain any additional audiometric findings for consideration, other than the ones listed below. 

The evidence of record for this initial period on appeal includes an October 2005 VA audiological consult and accompanying audiogram.  The Veteran's puretone thresholds in decibels are as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
XX
45
55
55
55
LEFT
XX
45
55
55
55

The average puretone threshold was 53 decibels in the right ear and 53 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear.  

Applying the results of that October 2005 examination to Table VI yields values of Level I for the right and left ears.  Applying these values to Table VII indicates his bilateral hearing loss at that time was noncompensable, i.e., 0 percent, disabling. 

In September 2012, the Veteran submitted a November 2010 VA audiogram.  This report shows the Veteran's puretone thresholds in decibels are as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
XX
50
60
60
65
LEFT
XX
50
65
60
60

The average puretone threshold was 59 decibels in the right and left ears.  There are speech recognition scores on this audiogram report, however, it appears the examining physician used a NU-6 test and not the required Maryland CNC test.  As such, this audiogram is inadequate for rating purposes.  38 C.F.R. § 4.85.

After considering all the evidence of record for this initial period, the audiometric results sufficient for rating purposes pursuant to 38 C.F.R. § 4.85 do not warrant an initial compensable disability rating for the period from May 24, 2005, to July 25, 2012.

The Veteran also does not have the type of exceptional hearing impairment contemplated by 38 C.F.R. § 4.86(a) and (b), so this regulation does not apply.

For the Period Since July 26, 2012

Following the February 2011 Board remand, the Veteran underwent a VA audiological evaluation in July 2012.  At that time, his puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
XX
55
70
75
80
LEFT
XX
50
60
65
65

The average puretone threshold was 70 decibels in the right ear and 60 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 78 percent in the right ear and 88 percent in the left ear 

Applying the results of that July 2012 examination to Table VI yields values of Level IV for the right ear and Level III for the left ear.  Applying these values to Table VII indicates his bilateral hearing loss is 10 percent disabling. 

However, the Board notes the Veteran meets the requirements for exceptional patterns of hearing impairment, pursuant to § 4.86(a) since his puretone thresholds in the right ear are at least 55 decibels at each of the four specified frequencies.  38 C.F.R. § 4.86(a) also provides that each ear will be evaluated separately.  Application of this regulations results in a Level VI hearing designation for his right ear using Table VIA, which is greater than the just Level IV designation for this ear if instead using Table VI.  But even when combining this higher Level VI designation for his right ear with the Level III designation for his left ear, the results still warrant, at most, a 10 percent rating for his bilateral hearing loss under Table VII.  

The examiner also stated that the Veteran reported his bilateral hearing loss causes him not to be able to understand or hear conversations at work periodically.  He also stated this was especially noticeable when using the phone.  No additional functional limitations were noted by the Veteran.  

The results of the initial VA compensation examination in October 2005 show the Veteran's bilateral hearing loss was 0 percent disabling, meaning noncompensable, since he had Level I hearing in both his right and left ears.  See 38 C.F.R. § 4.85, Table VII.  He did not meet the requirements for the higher 10 percent rating until the July 2012 VA compensation examination.  However, the results of the most recent VA examination in July 2012 do not support assigning a rating in excess of 10 percent.  

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 symptomatolgy as reported by the Veteran concerning his bilateral hearing loss.  The Veteran has reported difficulty hearing conversations "periodically," and it is especially noticeable when he is using the phone.  These symptoms of impaired hearing ability are contemplated by the schedular rating criteria of Diagnostic Code 6100.  Moreover, the Veteran has only alleged that his hearing loss caused him to not be able to understand or hear conversations at work "periodically."  The Board does not find that this level of sporadic impairment of occupational functioning rises to the level of "marked interference" with employment.  Finally, the Board notes that an October 2008 treatment plan note shows that when completing an Individualized Plan for Employment with a Vocational Rehabilitation Specialist, although the Veteran noted that he had hearing impairment, he also specifically confirmed that he could hear voices/sounds, including voices on a telephone, and that he hears at normal levels with his hearing aids in place.  Therefore, the rating criteria are adequate to evaluate the Veteran's bilateral hearing loss disability and referral for consideration of extraschedular rating is not warranted.

In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability.  In the instant case, although the Veteran indicates that his nonservice-connected lumbar spine disability renders him unemployable, the Veteran has not alleged that his bilateral hearing loss causes him to be unemployable.  Therefore, the Board finds that a claim for TDIU is not raised by the Veteran or reasonably raised by the record and, as such, need not be further addressed.

In sum, as the preponderance of the evidence is against the claim for increased ratings, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

The appeal as to the claim of entitlement to service connection for a bilateral testicle disorder is dismissed.  

Entitlement to an initial compensable disability rating for bilateral hearing loss from May 24, 2005 to July 25, 2012, is denied.

Entitlement to a disability rating higher than 10 percent for bilateral hearing loss since July 26, 2012, is denied.  


REMAND

The Board sincerely regrets the additional delay caused by this Remand.  However, this action is necessary to ensure that all due process is met and to afford the Veteran every benefit under the laws.  

The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  

When determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  

The Veteran contends that he injured his back in 1977 while in the military as a result of moving heavy boxes and crates.  A July 1977 service treatment record states the Veteran complained of back problems while lifting boxes.  He was diagnosed with muscle strain and there were no other symptoms aside from tenderness.  The Veteran's private treatment records from the Parkway Orthopedic Group reflect that the Veteran received a diagnosis of a herniated nucleus pulposus at L4-L5 in August 2002.  Additionally, a VA treatment record dated in May 2005 notes the Veteran's complaints of low back pain in the L-S spine area.  His low back pain complaints are also noted in an October 2008 VA treatment record.  
The Veteran testified at his August 2009 Board hearing that he has experienced back pain "ongoing" since his back injury in service.  He noted that he treated his pain with over-the-counter medications and use of a whirlpool.  The Board finds the Veteran is competent to attest to experiencing back pain and is credible in doing so.  As such, the Board finds that the evidence suggests there may be a relationship between the Veteran's service and his current lumbar spine condition.  Accordingly an etiological opinion should be obtained to determine if the Veteran currently suffers from a low back disorder and, if so, whether it is related to service, including his in-service strain.  See McLendon, 20 Vet. App. 79. 

Additionally, on remand, any additional private treatment records concerning the Veteran's claimed low back disorder, or VA treatment records dated after July 2012 should be associated with the claims folders, either physically or electronically.  38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran whether he has received any evaluation or treatment for his back disorder, and then attempt to obtain these records and associate them with the claims file.  

2.  The Veteran should also be scheduled for a VA compensation examination to confirm whether he has a current low back disability, and if so, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that any diagnosed back disability is due to or the result of his military service, including the July 1977 in-service low back strain.  

It is essential that the examiner review the Veteran's claims file (and note such review in the report) and discuss the underlying medical rationale of the opinion, whether favorable or unfavorable, citing to specific evidence in the file.

If no opinion can be rendered concerning this claim, without resorting to mere speculation, explain why this is not possible or feasible - such as clarifying whether the examiner simply is unable to comment since the limits of medical knowledge have been exhausted or, instead, for example, there are multiple possible etiologies with none more prevalent than another, or he needs further information to assist in making this nexus determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data.  Merely saying the examiner cannot comment will not suffice and will render the examination inadequate.

The Veteran is hereby advised that failure to report for this examination, without good cause, may have detrimental consequences on this pending claim.  38 C.F.R. § 3.655(b) (2012).

3.  Readjudicate the claim of entitlement to service connection for a back disorder.  If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond.

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).



______________________________________________
M.N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs