Citation Nr: 1316710	
Decision Date: 05/22/13    Archive Date: 05/31/13

DOCKET NO.  09-38 929	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

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

2.  Entitlement to service connection for a respiratory disability, including the residuals of asbestos exposure.  

3.  Entitlement to service connection for the residuals of a right upper extremity trauma.

4.  Entitlement to service connection for the residuals of a left upper extremity trauma.  

5.  Entitlement to service connection for the residuals of a sternum trauma.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel


INTRODUCTION

The Veteran had active service from October 1956 to February 1960.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the Louisville, Kentucky, Regional Office (RO).

The March 2009 decision denied service connection claims for a respiratory disability; the residuals of right and left upper extremity traumas; and the residuals of a sternum trauma.  The decision also granted service connection for bilateral hearing loss, assigning an initial noncompensable rating.  

Based on the evidence and to most accurately reflect the benefits sought, the service connection claims have been recharacterized on the title page.  

The issues of entitlement to service connection for a respiratory disability; the residuals of right and left upper extremity trauma; and the residuals of a sternum trauma are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  During the period under review, the Veteran's right ear hearing loss disability was manifested by an average puretone threshold, in decibels, of 65 with speech recognition of 76 percent (Level IV hearing loss).  

2.  During the period under review, the Veteran's left ear hearing loss disability was manifest by an average puretone threshold, in decibels, of 55 with speech recognition of 84 percent (Level II hearing loss).  


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

	Duties to Assist and Notify

The appeal arises from the Veteran's disagreement with the initial rating, 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 and will not be discussed.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).   

The Veteran's service treatment records and post-service treatment records have been obtained.  He has not identified any additional pertinent records VA should seek to obtain on his behalf and there is no indication that any additional relevant evidence is available and not part of the claims file or the Virtual VA system.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Veteran was provided a VA audiological examination in February 2009 and, since this time, has not asserted his hearing loss disability has worsened nor is any evidence of such.  See Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007).  The February 2009 VA audiological examination provides sufficient evidence and to make a fully informed assessment of the nature, extent, severity and functional effects of the bilateral hearing loss disability, making it adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Dingess/Hartman, 19 Vet. App. at 486.  

	Applicable Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  

The Veteran's service-connected bilateral hearing loss has been assigned a noncompensable disability evaluation, under 38 C.F.R. § 4.85, Diagnostic Code 6100. 

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. 

	Evidence and Analysis

On VA audiological evaluation in February 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
50
60
75
75
LEFT
25
40
50
65
65

The average in the right ear was 65 decibels, and the average for the left ear was 55 decibels.  Speech recognition ability was 76 percent in the right ear and 84 percent in the left ear.  

The assignment of disability rating for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  The audiometry test results of the February 2009 VA examination equate to Level IV hearing in the right ear and Level II hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  

The record contains no certification of language difficulties, inconsistent speech audiometry scores, or sufficient pure tone threshold findings of 30 decibels or less, rendering the numeric designations contained in Table VIa inapplicable.  See 38 C.F.R. §§ 4.85(c), 4.86 (b).

Level IV hearing in the right ear and Level II hearing in the left ear, when applied to the Table VII percentage ratings for hearing impairment, result in a zero percent rating and an initial compensable rating for the bilateral hearing loss disability is not warranted.  

	Extraschedular Considerations

In exceptional cases, an extra-schedular 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 extra-schedular 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 extra-schedular 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 Veteran, his spouse and the February 2009 VA examiner have described the functional impairments associated with the bilateral hearing loss disability, including difficulties participating in conversations, watching television, talking on the phone and performing some occupational related functions.  

The Rating Schedule takes into account both the average decibel loss as well as speech discrimination scores, reflecting sufficient contemplation of the manifestations of the Veteran's hearing loss disability by the rating schedule.  
There are no additional symptoms of his bilateral hearing loss disability that are not addressed by the rating schedule and referral for extraschedular consideration is not warranted.  

As the record indicates the Veteran is employed, consideration of a total disability evaluation, based on individual unemployability, due to service-connected disabilities (TDIU), is not warranted.  


ORDER

An initial compensable disability rating for bilateral hearing loss is denied.


REMAND

In his January 2009 statement, the Veteran provides competent evidence of in-service asbestos exposure; and of sustaining trauma to his upper extremities and sternum.  Service department records also tend to corroborate his account of in-service asbestos exposure and upper extremity symptoms.  Post-service medical records document his complaints related to the respectively claimed conditions and instances of related treatment.  The Veteran must be provided VA examinations in connection with his claimed conditions.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The record suggests that the Veteran receives regular VA upper extremity, sternum and respiratory treatment; however, VA treatment records dated since March 2009 have not been associated with the paper or electronic claims file.  A January 2009 VA medical note also indicates that numerous private treatment records were scanned, but these records are not associated with the paper or electronic claims folder.  These records must be obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  


Accordingly, the case is REMANDED for the following action:

1.  Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or who were contemporaneously informed of his upper extremity, sternum and respiratory symptoms, including any possible relationship to military service.  Provide an appropriate amount of time to submit this evidence.  

2.  Contact the Veteran and ascertain all sources of private treatment or evaluation for upper extremity, sternum and respiratory conditions, since separation.  The request must specifically request the private treatment records generated at the Wayne County Hospital facility, as identified in the January 2009 VA medical note.  Undertake appropriate attempts to obtain any identified records.  All development efforts are to be in writing and associated with the claims folder.  

3.  Obtain all outstanding VA treatment and/or hospitalization records dated since March 2009 related to the Veteran's upper extremity, sternum and respiratory conditions.  Any negative response(s) must be in writing and associated with the claims folder.

4.  After the aforementioned development has been completed, schedule the Veteran for a VA orthopedic examination with an appropriate medical professional.  The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

The examiner is to diagnose all right upper extremity, left upper extremity and sternum pathology, if any is present, specifically ruling in or excluding diagnoses related to the shoulders, elbows and sternum.  

Then, as to any diagnosed condition, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the condition: (A) had its onset in-service or within one year of separation; and (B) is related to the Veteran's period of military service, including falling from the deck of a ship to the engine room.  

The provided examination report must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's statements; October 1956 enlistment Report of Medical Examination and Report of Medical History; January 1980 separation Report of Medical Examination and Report of Medical History; a September 1958 service consultation and radiological report; February 2001 and July 2000 VA primary care notes; March 2007, July 2000 and July 1999 VA radiological reports; etc.) and set forth a complete rationale for all findings and conclusions.  All necessary tests necessary must be performed by the examiner.  

If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training).

5.  After the aforementioned development has been completed, schedule the Veteran for a VA respiratory examination with an appropriate medical professional.  The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

The examiner is to diagnose all respiratory pathology, if any is present, specifically ruling in or excluding asbestosis exposure related disabilities.  

Then, as to any diagnosed condition, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the condition: (A) had its onset in-service or within one year of separation; and (B) is related to the Veteran's period of military service, including in-service asbestos exposure.  

The provided examination report must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's statements; October 1956 enlistment Report of Medical Examination and Report of Medical History; January 1980 separation Report of Medical Examination and Report of Medical History; a September 1958 service consultation and radiological report; service chest x-rays, dated in December 1956, March 1957, February 1958, August 1959 and January 1960; VA chest radiological reports, dated in July 2000, July 1999, January 1999, June 1998; etc.) and set forth a complete rationale for all findings and conclusions.  All necessary tests necessary must be performed by the examiner.  

If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training).

6.  Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated.  Then readjudicate the claims on appeal.  If any of the benefits remain denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond.  The case is to then be returned to the Board for further appellate review. 

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





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



______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs