Citation Nr: 1318198 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-29 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a bilateral eye disorder, claimed as diplopia. 2. Entitlement to service connection for a back disorder. 3. Entitlement to an initial compensable disability evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from August 1974 to December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Portland, Oregon, which in pertinent part, denied service connection for diplopia and a low back disorder and granted service connection for bilateral hearing loss and assigned a noncompensable disability evaluation. The issue of service connection for a low back disorder 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. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran currently has diplopia of service origin. 2. The Veteran has been shown to have no less than level I hearing in either ear during the course of this appeal. CONCLUSIONS OF LAW 1. Diplopia was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for an initial compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As it relates to the issue of service connection for a bilateral eye disorder, claimed as diplopia, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, as it relates to the issue of service connection for diplopia, further assistance is not required to substantiate that element of the claim. As it relates to the issue of an initial compensable evaluation for bilateral hearing loss, because the Veteran's appeal arises from his disagreement with the initial rating following the grant of service connection, no additional notice is required. The United States Court of Appeals for Veterans Claims (Court) and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date). With regard to the hearing loss claim, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, VA examination reports, private treatment records, and lay evidence, to include hearing testimony. No additional pertinent evidence has been identified by the claimant. The Veteran was afforded VA examinations in May 2008 and June 2012. Information obtained from these examinations, which included detailed history, statements from the Veteran, and testing results, provided sufficient information to properly rate the Veteran's claim. As such, the Board finds that an additional VA examination is not warranted as there is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Veteran also appeared at a Travel Board hearing before the undersigned Veterans Law Judge in March 2013 in support of his claim. At the time of the hearing, the Veterans Law Judge set forth the issues on appeal. Furthermore, information was obtained regarding the symptoms related to the Veteran's claimed disorders. Therefore, not only were the issues explained in terms of the scope of the claim for benefits, but the outstanding issues material to substantiating the claims were also fully explained. Moreover, at the time of the hearing, the Veteran was afforded the opportunity to identify and submit additional evidence and he submitted additional evidence along with the requested waiver. The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R.§ 3.103(c)(2). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. As noted above, he also appeared at a Travel Board hearing before the undersigned Veterans Law Judge in March 2013. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Bilateral Eye Disorder, Claimed as Diplopia Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Diplopia is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply to the non-chronic disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran maintains that he currently has diplopia which had its onset in service and has continued to the present day. A review of the Veteran's service treatment records reveals that he was seen in November 1993 with complaints of pressure behind the eyes and occasional diplopia, which had occurred over the past few years. At the time of a December 1993 ophthalmological consult, the Veteran reported having a two year history of intermittent binocular diplopia, which had increased in frequency until October 1993, when it occurred three times per month. He reported waiting ten minutes and stated it would go away. It was unrelated to activity or the time of day. Following examination, the examiner rendered assessments of intermittent diplopia probably secondary to broken down phoria and bilateral refractive error. At the time of a November 1994 visit, the Veteran was noted to have been found to have intermittent diplopia in December 1993. He indicated that he had had no other episodes until October 1994, when he had three episodes of vertical binocular diplopia, which lasted two to three minutes. It was broken by blinking. This was unrelated to fatigue, stress, or sunlight. It was the examiner's impression that the Veteran had intermittent diplopia secondary to broken down phoria. In conjunction with his claim, the Veteran was afforded a VA examination in May 2008. The Veteran reported having intermittent diplopia. He stated that this could happen once a month up to several times per day. Following examination, the examiner rendered a diagnosis of intermittent diplopia. The Veteran stated that when this occurred, it made driving scary. The examiner indicated that he had examined the Veteran and his claims folder and electronic medical records. He opined that the Veteran's current reports of diplopia (although none measured or observed) were at least as likely as not related to the inservice reports of diplopia. At the time of his March 2013 hearing, the Veteran testified that he was first treated for diplopia in 1992 or 1993. The Veteran stated that he had a problem with diplopia three to four times per month. He indicated that it was not a continuous issue. He reported that he wore glasses but these did not correct his double vision. The Board finds that the Veteran's statements credible as to having had diplopia on an intermittent basis since his period of service. His statements, combined with the inservice findings of diplopia, and the VA examiner's opinion that the Veteran's current diplopia (although not found at the time of examination) was at least as likely as not related to the inservice reports of diplopia, warrant resolving reasonable doubt in favor of the Veteran, and supports a determination that service connection for diplopia is warranted. Evaluation for Bilateral Hearing Loss 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 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). 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Evaluations of defective hearing range from noncompensable to 100 percent for service-connected hearing loss. These evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The regulations provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the 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. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) 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 Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. A noncompensable 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. The assignment of disability ratings for hearing impairment are arrived at by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In support of his claim, the Veteran submitted the results of an April 2007 private audiological evaluation which revealed him to have decibel level readings of 5, 5, 20, and 50 in the right ear, and 25, 35, 35, and 55 in the left ear, at 1000, 2000, 3000, and 4000 Hertz. In a March 2008 statement, the Veteran's wife indicated that his hearing had become progressively worse as he now turned up the volume on the television and talked loud to people. In conjunction with his claim, the Veteran was afforded a VA audiological examination in May 2008. The Veteran reported having difficulty hearing in groups and in noisy situations. He also avoided social situations because of hearing loss. Audiological evaluation revealed the Veteran to have decibel level readings of 10, 10, 25, and 45 in the right ear, and 10, 15, 20, and 40 in the left ear, at 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was 100 percent in the right ear and 100 percent in the left ear. The examiner rendered a diagnosis of bilateral sensorineural hearing loss. The examiner noted that the Veteran had been a career diesel mechanic. In his July 2008 notice of disagreement, the Veteran indicated that his hearing loss was severe enough to be rated for compensation. The Veteran also submitted the results of an October 2009 private audiological evaluation in support of his claim which revealed decibel level readings of 10, 10, 30, and 55 in the right ear and 15, 15, 25, and 35 in the left ear at 1000, 2000, 3000, and 4000 Hertz. The Veteran was afforded an additional VA audiological examination in June 2012. The Veteran reported having difficulty hearing with background noise, when watching the television, when on the telephone, when there were high pitched sounds, and with one-on-one conversations. Audiological evaluation revealed the Veteran to have decibel level readings of 5, 0, 30, and 50 in the right ear, and 5, 0, 20, and 40 in the left ear, at 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was 100 percent in the right ear and 98 percent in the left ear. At the time of his March 2013 hearing, the Veteran's wife testified that his hearing had gotten progressively worse. She noted that she had to speak loud if the Veteran was looking in the other direction. The Veteran stated that his hearing loss had not become any worse since the last examination. A compensable evaluation of 10 percent is assigned where hearing in the better ear is I and hearing in the worse ear is X or XI; where hearing in the better ear is II, and hearing in the worse ear is V to XI; where hearing in the better ear is III and hearing in the worse ear is IV to VI; or where hearing in the better ear is IV and hearing in the poorer ear is IV or V. Hearing impairment is level I where speech discrimination percentage is 92-100 and the puretone threshold average ranges from 0 to 57. Level II impairment is either when there is speech discrimination of 92-100 percent and a puretone threshold average of 58 to 81 or where there is speech discrimination percentage of 84-90 with a puretone threshold average of 0 to 57. Level III hearing impairment requires a puretone threshold average of 82 to 97 where the percentage of speech discrimination is 92-100 percent; speech discrimination of 84 to 90 percent with a puretone threshold average of 58 to 81 or speech discrimination of 76 to 82 percent and a puretone threshold average of 0 to 49. Level IV hearing impairment requires a puretone threshold average of 98+ where speech discrimination is 92-100 percent; speech discrimination of 84 to 90 percent with a puretone threshold average of 82 to 98+, speech discrimination of 76 to 82 percent and a puretone threshold average of 50 to 73; and speech discrimination of 68 to 74 percent and a puretone threshold average of 0 to 49. 38 C.F.R. § 4.85, Table VI. Applying Table VIa to the results of the April 2007 private audiogram, as no speech discrimination was reported, yields a Roman numeral value of I for the left and right ear. Applying the results of the may 2008 VA audiological examinations to Table VI yields a Roman numeral value of I for the right ear and a I for the left ear. Applying Table VIa to the results of the October 2009 private audiogram, as no speech discrimination was reported, yields a Roman numeral value of I for the left and right ear. Applying the results of the June 2012 VA audiological examinations to Table VI yields a Roman numeral value of I for the right ear and I for the left ear. Applying the values from all examinations, private and VA, to Table VII, the Board finds that the Veteran's bilateral hearing loss is evaluated as 0 percent disabling. The results do not provide a basis to grant a higher disability rating. Although the VA examinations and treatment records show that the Veteran clearly has hearing loss, the audiometric test results do not support entitlement to an increased evaluation for bilateral hearing impairment. The Board has reviewed all the medical records in the claims file and found that there is no evidence related to hearing loss that supports a higher rating. The VA audiological examiner addressed the functional effect of the Veteran's hearing loss by noting that the Veteran reported having difficulty hearing with background noise, when watching the television, on the telephone, when there were high pitched sounds, and with one-on-one conversations. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). A VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran himself does not elaborate on any further functional impairment caused by his bilateral hearing loss not captured by the examinations. The Veteran's contentions presented on appeal have been accorded due consideration; however, the Board concludes that the recent medical findings discussed above are more probative of the current level of disability. The Veteran's lay statements as to the frequency and severity of his symptoms have been considered. However, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). The preponderance of the evidence is against a compensable rating for the Veteran's bilateral hearing loss. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Veteran's hearing loss disability manifestations are contemplated by the rating schedule. The schedular rating criteria, Diagnostic Code 6100, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the May 2008 VA examiner noted the Veteran reported having difficulty hearing in groups and in noisy situations and the June 2012 VA examiner indicated that the Veteran's complaints were difficulty hearing with background noise, when watching television and when on the telephone, when there were high pitched sounds and with one-on-one conversations. The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing. Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation. The Veteran's symptoms of decreased hearing are part of the schedular rating criteria, or otherwise "like or similar to" the rating criteria, and his complaints are contemplated by the Diagnostic Code. The puretone threshold averages and speech discrimination test results are evidence of the overall degree of occupational and social impairment, and are incorporated as part of the schedular rating criteria. See 38 C.F.R. § 4.130 . As such, the criteria for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Service connection for diplopia is granted. Entitlement to an initial compensable disability evaluation for bilateral hearing loss is denied. REMAND A review of the Veteran's service treatment records reveals that in October 1992, the Veteran reported having had upper back pain for the past two days and lower back pain for several months. Physical examination performed at that time revealed that the Veteran's low back paraspinal muscles were very tight with no pain noted upon range of motion or palpation. In August 1993, the Veteran was noted to have a long history of back pain which would come and go. The Veteran reported that he had learned to live with the symptoms. The Veteran was sent to back school at that time. On his November 1994 service separation report of medical history, the Veteran checked the "yes" box when asked if he had or had ever had recurrent back pain. The Veteran has reported having back pain since service. In a January 2010 private treatment record, the Veteran was noted to have had chronic low back pain. The Veteran reported that he started having back pain issues in the Navy and was first seen for this in 1993. The physician diagnosed the Veteran as having back pain and indicated that the Veteran had been having problems since his period of service. He stated that the pain did begin in service and was part likely service related. At the time of his March 2013 hearing, the Veteran reported having had back pain since the late 1980's and noted being treated in 1993 for back problems. To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of any current back disorder and its relationship, if any, to his period of service. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Based upon the above, the Veteran should be afforded a VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current back disability. All tests and studies deemed necessary by the examiner should be performed and all findings should be reported in detail. Based on a review of the claims file and any other pertinent records, and the clinical findings of the examination, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back disorder, if found, is related to the Veteran's period of active service. A complete rationale should be provided for all provided opinions and conclusions. 2. Ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any other development deemed appropriate, readjudicate the remaining issue. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case containing all pertinent laws and regulations and afforded an opportunity to respond before the record is returned to the Board for future review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs