Citation Nr: 1316874 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-15 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to an increased disability rating for hemorrhoids, currently rated 20 percent. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active service from February 1964 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for bilateral hearing loss at 0 percent disabling and continued a 0 percent rating for service-connected hemorrhoids. A notice of disagreement was received in April 2008, a statement of the case was issued in March 2009, and a substantive appeal was received in April 2009. A videoconference hearing was held before the undersigned in January 2013. A May 2011 rating decision increased the Veteran's disability rating for hemorrhoids to 20 percent, effective from March 1, 2010. Applicable law provides that absent a waiver, a claimant seeking a disabling 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 The Veteran has not withdrawn the appeal as to the issue of the disability rating greater than assigned for hemorrhoids, and the issue therefore remains in appellate status. FINDINGS OF FACT 1. Prior to May 6, 2008, the Veteran's service-connected bilateral hearing loss disability was productive of no higher than Level III hearing acuity in the right ear and no higher than Level II hearing acuity in the left ear. 2. From May 6, 2008 to April 28, 2011, the Veteran's service-connected bilateral hearing loss disability was productive of no higher than Level IV hearing acuity in the right ear and no higher than Level III hearing acuity in the left ear. 3. From April 28, 2011, the Veteran's service-connected bilateral hearing loss disability was productive of no higher than Level III hearing acuity in the right ear and no higher than Level II hearing acuity in the left ear. 4. Prior to March 1, 2010, the Veteran's service-connected hemorrhoids have been manifested by frequent recurrence with excessive redundant tissue and were irreducible. 5. From March 1, 2010, the Veteran's service-connected hemorrhoids are characterized by persistent bleeding; there is no evidence of involuntary bowel movements, loss of sphincter control, stricture or prolapse of the anus or rectum, or fistulas. CONCLUSIONS OF LAW 1. Prior to May 6, 2008, the criteria for the assignment of a compensable rating for bilateral hearing loss disability were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, 4.86 and Diagnostic Code 6100 (2012). 2. From May 6, 2008 to April 28, 2011, the criteria for the assignment of a 10 percent rating (but no higher) for bilateral hearing loss disability were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, 4.86 and Diagnostic Code 6100 (2012). 3. From April 28, 2011, the criteria for the assignment of a compensable rating for bilateral hearing loss disability were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, 4.86 and Diagnostic Code 6100 (2012). 4. Prior to March 1, 2010, the criteria for a 10 percent rating for hemorrhoids have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.114 and Diagnostic Code 7336 (2012). 5. From March 1, 2010, the criteria for a rating in excess of 20 percent for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.114 and Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in January 2008, April 2008, and August 2008 VCAA letters, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in January 2008, April 2008, and August 2008. The January 2008 notice was prior to the February 2008 rating decision. And although the April 2008 and August 2008 notice letters were received following the initial adjudication of this case, the Veteran's claims were readjudicated in March 2009 in a statement of the case. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. The January 2008, April 2008, and August 2008 letters also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Service treatment records (STRs) and VA medical records are associated with the file. Additionally, the Veteran was afforded a VA examination in January 2008, April 2011, and January 2012. Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Legal Criteria Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Bilateral Hearing Loss The Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table 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. 38 C.F.R. § 4.86(b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. A zero percent evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Prior to May 6, 2008 The present appeal involves the Veteran's claim that the severity of his service-connected bilateral hearing loss warrants a higher disability rating. Historically, service connection was granted for bilateral hearing loss in February 2008. The disorder was evaluated as 0 percent disabling, effective September 28, 2007. This rating was based on the results of the January 2008 examination. On VA audiological evaluation in January 2008, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 25 35 60 65 LEFT -- 25 25 40 40 The Veteran was shown to have an average puretone hearing loss in the right ear of 46 decibels, with 82 percent speech discrimination, which translates to a Roman numeral designation of III for the right ear. The Veteran was shown to have an average puretone hearing loss in the left ear of 33 decibels, with 90 percent speech discrimination, which translates to a Roman numeral designation of II for the left ear. 38 C.F.R. § 4.85, Table VI. When applying Table VII of 38 C.F.R. § 4.85, Diagnostic Code 6100, level III for the right ear and level II for the left ear equates to a noncompensable disability evaluation. The Board notes that the January 2008 audiology does not show exceptional hearing loss as defined by 38 C.F.R. § 4.86 so as to warrant a compensable rating. A higher rating is not otherwise warranted under the scheduler rating criteria. Thus, the preponderance of the evidence is against the claim for a compensable evaluation prior to May 6, 2008. From May 6, 2008 to April 28, 2011 On May 6, 2008, the Veteran complained of decreased hearing sensitivity in both ears and increased communication difficulty. An audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 15 30 55 65 LEFT -- 20 20 40 50 The Veteran was shown to have an average puretone hearing loss in the right ear of 41 decibels, with 72 percent speech discrimination, which translates to a Roman numeral designation of IV for the right ear. The Veteran was shown to have an average puretone hearing loss in the left ear of 33 decibels, with 80 percent speech discrimination, which translates to a Roman numeral designation of III for the left ear. 38 C.F.R. § 4.85, Table VI. When applying Table VII of 38 C.F.R. § 4.85, Diagnostic Code 6100, level IV for the right ear and level III for the left ear equates to a 10 percent disability evaluation under 38 C.F.R. § 4.85 by intersecting vertical column III with horizontal column IV. The Board notes that the May 2008 audiology does not show exceptional hearing loss as defined by 38 C.F.R. § 4.86 so as to warrant a rating in excess of 10 percent. A higher rating is not otherwise warranted under the scheduler rating criteria. Thus, the evidence supports a finding that a 10 percent rating (but no higher) is warranted from May 6, 2008 to April 28, 2011. From April 28, 2011 On April 28, 2011 audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 20 35 55 65 LEFT -- 20 20 40 50 The Veteran was shown to have an average puretone hearing loss in the right ear of 44 decibels, with 80 percent speech discrimination, which translates to a Roman numeral designation of III for the right ear. The Veteran was shown to have an average puretone hearing loss in the left ear of 33 decibels, with 88 percent speech discrimination, which translates to a Roman numeral designation of II for the left ear. 38 C.F.R. § 4.85, Table VI. When applying Table VII, Diagnostic Code 6100, level III for the right ear and level II for the left ear equates to a noncompensable disability evaluation. The Veteran also received a VA audiological examination in January 2012. On evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 25 45 60 75 LEFT -- 30 40 55 65 The Veteran was shown to have an average puretone hearing loss in the right ear of 51 decibels, with 88 percent speech discrimination, which translates to a Roman numeral designation of II for the right ear. The Veteran was shown to have an average puretone hearing loss in the left ear of 48 decibels, with 92 percent speech discrimination, which translates to a Roman numeral designation of I for the left ear. 38 C.F.R. § 4.85, Table VI. When applying Table VII, Diagnostic Code 6100, level II for the right ear and level I for the left ear equates to noncompensable disability evaluation. The Board notes that the April 2011 and January 2012 audiology does not show exceptional hearing loss as defined by 38 C.F.R. § 4.86 so as to warrant a compensable rating. A higher rating is not otherwise warranted under the scheduler rating criteria. Thus, the preponderance of the evidence is against the claim for a compensable evaluation from April 28, 2011. Hemorrhoids The Veteran claims that his hemorrhoids disability has increased in severity and warrants a higher disability rating. The Veteran's service-connected hemorrhoids disability is currently rated 20 percent disabling, effective March 1, 2010, under Diagnostic Code 7336. Diagnostic Code 7336 dictates that mild or moderate hemorrhoids warrant a noncompensable rating and large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent occurrences, warrant a 10 percent rating. A 20 percent rating is warranted with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.71a, Diagnostic Code 7336. The Veteran was afforded a VA examination in January 2008. The Veteran reported anal itching, pain, a nagging feeling to empty bowel, and occasional bleeding. He stated that his hemorrhoids occur occasionally and his current treatment is Preparation H. A rectal examination was performed which showed no evidence of ulceration, fissures, reduction of lumen, trauma, rectal bleeding, proctitis, infections, spinal cord injury, or protrusion or loss of sphincter control. External hemorrhoids were present located at 2, 4, and 10:00, and which were not reducible. There was no evidence of bleeding and thrombosis was absent. The examiner noted that there was evidence of frequent recurrence, with excessive redundant tissue, and frequent recurrence. Additionally, there were no findings of anemia, or of malnutrition. In March 2010, a VA treatment record noted persistent hematochezia, attributed to hemorrhoids. The Veteran again received a VA examination in April 2011. The Veteran reported continuing to have hemorrhoid flare ups at least one time per month, lasting for 2-3 days; he noted bleeding upon flare-ups. He reported associated anal itching, pain, tenesmus, and swelling. He denied fecal incontinence. He stated that he treats his hemorrhoids with over the counter Preparation H. On examination, the examiner noted two large hemorrhoids. Prior to March 1, 2010 Prior to March 1, 2010, the Veteran's service-connected hemorrhoids were rated as 0 percent disabling, which equates to mild or moderate symptomatology. During this period, the January 2008 VA examiner noted that the Veteran's hemorrhoids were irreducible and that there was evidence of frequent recurrence with excessive redundant tissue. Under Code 7336, a 10 percent rating is warranted for large or thrombotic hemorrhoids, that are irreducible, with excessive redundant tissue, evidencing frequent recurrences. The Board believes that the evidence supports a finding that the criteria for a 10 percent rating were in fact met for the period on appeal prior to March 1, 2010. However, a rating in excess of 10 percent is not warranted because there is no evidence during this period to indicate persistent bleeding, anemia, or fissures. In fact, the January 2008 VA examiner specifically noted no fissures, bleeding, or anemia. From March 1, 2010 From March 1, 2010, the RO increased the Veteran's rating to 20 percent due to evidence of persistent bleeding noted on a VA treatment record. The Board notes that the Veteran is currently rated at the highest rating available under Diagnostic Code 7336. The Board has considered whether a higher rating is warranted for the Veteran's disability under other applicable diagnostic codes, but there is no evidence of involuntary bowel movements, loss of sphincter control, stricture or prolapse of the anus or rectum, or fistulas to warrant a rating in excess of 20 percent for the Veteran's service-connected hemorrhoids disability under Diagnostic Codes 7332-7335. Thus, the preponderance of the evidence is against the claim for a rating in excess of 20 percent from March 1, 2010. Extraschedular Consideration The Board has also considered whether the Veteran's bilateral hearing loss and hemorrhoids disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case, there are no exceptional or unusual factors with regard to the Veteran's disabilities on appeal. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe his disability level and symptomatology and provides for more severe symptoms than shown by the evidence during the period in question; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Hence, referral for extraschedular consideration is not warranted. Further, the evidence pertinent to the two issues on appeal does not reasonably raise a claim of entitlement to total disability based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to a 10 percent rating (but no higher) for bilateral hearing loss from May 6, 2008, to April 28, 2011, is warranted. Entitlement to a 10 percent rating for hemorrhoids for the period on appeal prior to March 1, 2010, is warranted. To this extent the appeal is granted, subject to laws and regulations applicable to payment of VA monetary benefits. Entitlement to a compensable rating for bilateral hearing loss prior to May 6, 2008 is not warranted. Entitlement to a compensable rating for bilateral hearing loss from April 28, 2011, is not warranted. Prior to March 1, 2010. Entitlement to a rating in excess of 20 percent for hemorrhoids from March 1, 2010, is not warranted. The this extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs