Citation Nr: 1318308	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  09-01 305	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to service connection for residuals of left arm injury or sprain.

2. Entitlement to a compensable disability rating for bilateral hearing loss.

3. Entitlement to an increased initial evaluation for allergic rhinitis, currently evaluated as noncompensably disabling.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. McBrine, Counsel


INTRODUCTION

The Veteran served on active duty from February 1962 to February 1992.

These matters come to the Board of Veterans' Appeals  (Board) on appeal from a June 2008 rating decision that, in pertinent part, denied service connection for sinusitis, for headaches, for pes planus, and for residuals of left arm injury or sprain; and from a June 2010 rating decision that denied a compensable disability rating for bilateral hearing loss. The Veteran timely appealed.

In August 2011, the Veteran testified during a video conference hearing before the undersigned. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO.

These issues, along with the issues of service connection for rhinitis/sinusitis, pes planus, and headaches, were remanded by the Board in November 2011 for further development.  As the issues of service connection for rhinitis, pes planus, and headaches were granted in October 2012 and December 2012 rating decisions, the only remaining issues in appellate status are as noted above.

The issue of entitlement to an increased initial evaluation for allergic rhinitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.






FINDINGS OF FACT

1.  For the appeal period, the evidence of record does not reflect that the Veteran's hearing loss disability has manifested in more than Level I impairment in the right ear and Level I impairment in the left ear.

2.  The preponderance of the evidence is against a finding that the Veteran's currently diagnosed left arm disability is etiologically related to a disease, injury, or event in service.


CONCLUSIONS OF LAW

1.  The criteria for the assignment of a compensable disability rating for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2012).

2.  A left arm disability was not incurred in or aggravated by service, nor may it be presumed to be so incurred.  38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Stegall Considerations

As noted above, the Board previously remanded this case in November 2011 for further development, specifically for VA examinations with opinions to adequately address the current level of severity of the Veteran's hearing loss, and the etiology of his left arm condition.  The Veteran was provided with these VA examination in January 2012 and his claim was readjudicated in a December 2012 SSOC.  Thus, there is compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.  

Nevertheless, the Board finds that VCAA letters dated in December 2007, May 2010, and December 2011, as well as the prior remand in November 2011, satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121. 

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (finding that "no error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization (VSO) and has submitted argument in support of his claims.  These arguments have referenced the applicable laws and regulations.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case.  As such, a further remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and relevant VA medical records are in the file.  All records identified by the Veteran as relating to the claims have been obtained, to the extent possible.  The Board finds that the record contains sufficient evidence to make a decision on the claims. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2012).  In this case, the Board notes that the Veteran was provided with multiple VA examinations during the course of this appeal, most recently in January 2012.  The VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's claim.   

Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was last examined in March 2013.  See 38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95 (April 7, 1995).  The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.

The Board also notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2012), the Court held that 38 C.F.R. § 3.103(c)(2)  requires that the VLJ/Decision Review Officer (DRO) 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, the VLJ fully explained the issues on appeal during the hearing.  Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim.  Significantly, 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 identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).


Increased Evaluation for Hearing Loss

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Separate rating codes identify the various disabilities.  See 38 C.F.R. Part 4 (2012).  When 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.  See 38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3 (2012).

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  See Fenderson v. West, 12 Vet. App. 119 (1999).  However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities.  See 38 C.F.R. § 4.14 (2012).
In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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. 

See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, supra (concerning a dislocated shoulder).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).

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 (2012).  

Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).  

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing as set forth in 38 C.F.R. § 4.85  (2012).  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss.  The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 ) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85 (2012). 

The provisions of 38 C.F.R. § 4.86(a) provide that 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.  The provisions of 38 C.F.R. § 4.86(b)  provide that when the puretone threshold is 30 dB or less at 1,000 Hertz, and 70 dB 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.

The Veteran's hearing loss disability is currently rated as noncompensably disabled under 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012) [hearing impairment].  Diagnostic Code 6100 is deemed by the Board to be the most appropriate, primarily because it pertains specifically to the disability at issue [hearing loss].  The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 6100.

Evidentiary Background and Analysis

Reviewing the audiological evidence of record, there is no medical evidence of record showing that the Veteran would be entitled to a higher evaluation.

On an audiological evaluation in March 2010 pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
20
40
LEFT
15
10
15
25
45

Speech audiometry revealed speech recognition ability of 92 percent in the right ear, and 100 percent in the left ear.  However, as speech discrimination scores were not obtained using the Maryland CNC test as required by applicable regulations, the results of this examination cannot be used in evaluating the severity of his disability.


On the VA audiological evaluation in June 2010, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
30
35
45
LEFT
25
20
20
40
45

Speech audiometry revealed speech recognition ability of 100 percent in both ears.

Reviewing the evidence from this June 2010 VA examination report, and applying the results of this audiological evaluation to 38 C.F.R. § 4.85, Table VI, reveals Level I hearing impairment of the right ear and Level I hearing impairment of the left ear. Table VII [percentage evaluation for hearing impairment] indicates that, for a right and left ear with respective Level I and Level I hearing loss, a noncompensable percent disability rating is assigned.

On private audiological evaluation in March 2011, pure tone thresholds, in decibels, were approximately as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
20
20
40
LEFT
20
15
15
20
40

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 in the left ear.  However, as speech discrimination scores were not obtained using the Maryland CNC test as required by applicable regulations, the results of this examination cannot be used in evaluating the severity of his disability.



On a VA audiological evaluation in January 2012, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
20
40
LEFT
10
10
15
15
35

Speech audiometry revealed speech recognition ability of 96 percent in each ear.

Reviewing the evidence from the Veteran's January 2012 VA examination report, and applying the results of this audiological evaluation to 38 C.F.R. § 4.85, Table VI, reveals Level I hearing impairment of the right ear and Level I hearing impairment of the left ear. Table VII [percentage evaluation for hearing impairment] indicates that, for a right and left ear with respective Level I and Level I hearing loss, a noncompensable percent disability rating is assigned.

Thus, all of the medical evidence of record indicates that the Veteran does not meet the criteria for a higher rating for his service connected hearing loss disability.  As such, the Board finds that the preponderance of the evidence of record is against a grant of increased rating for this disability.

In reaching the above conclusion with respect to the Veteran's claim, the Board has not overlooked the Veteran's statements with regard to the severity of his hearing loss.  The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing trouble hearing; and the Board finds that the Veteran's reports have been credible.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board has considered the Veteran's reports along with findings from the medical evidence.  The Veteran is competent to report difficulty hearing and the Board has considered his contentions.  However, VA has created objective criteria which must be met to obtain a compensable disability rating.  Accordingly, the objective medical findings in his VA examination reports have been accorded greater probative weight.  

In light of the foregoing, the Board concludes that the weight of the evidence of record does not show that, for any of the periods on appeal, that the Veteran has met the criteria for a higher evaluation for his hearing loss disability.
 
As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and an increased rating must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990).

Extraschedular Consideration

In Martinak v. Nicholson, 21 Vet. App. 447, 453-4   (2007), the Court held that 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.  The Court noted that, unlike the rating schedule for hearing loss disability, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether an extraschedular rating is warranted.  See Martinak, 21 Vet. App. at 455. 

The Board observes that the examiners noted that the Veteran had difficulty hearing conversations and had to have other repeat themselves.  Therefore, the Board concludes that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b).

Under Thun v. Peake, 22 Vet App 111 (2008), decided after the Court's decision in Martinak, there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for hearing loss shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above, the rating criteria considers puretone decibel hearing loss and speech discrimination hearing loss.

In that regard, the Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994).  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.

Therefore, the Veteran's struggle to comprehend verbal conversations and other sounds is a factor contemplated in the regulations and rating criteria as defined.  The simple fact that the Veteran's hearing disability does not satisfy the numerical criteria for a compensable rating under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot.  In any event, the Board observes that, even if the available schedular evaluation for the Veteran's hearing loss disability were inadequate [which it manifestly s not], the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms," nor does he so contend.   

The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran.  While the Veteran has to use hearing aids, the record reflects that he hears well with them.  Furthermore, while others must repeat themselves, the Board finds that these functional effects caused by the Veteran's hearing disability, which undoubtedly exist, do not constitute any exceptional or unusual disability picture warranting consideration of an extraschedular rating.

In short, there is nothing in the record to indicate that the Veteran's service-connected hearing loss disability causes impairment with employment over and above that which is contemplated in the assigned schedular ratings.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired].  The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence of record is against the claim of  increased rating for the Veteran's hearing loss, and the benefit-of-the-doubt rule is therefore not for application.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert supra.  As the preponderance of the evidence of record is against this claim, it must be denied.

Rice Consideration

In denying the Veteran's claim for increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran, or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In the instant case however, there is no evidence this disability alone renders him unable to work, nor does it appear that the Veteran has made any such claim; therefore, the Board does not find consideration of a TDIU rating to be necessary.  It appears from the record that the Veteran in fact still maintains employment; therefore consideration of a TDIU claim at this time is moot.


Entitlement to Service Connection for a Left Arm Disability

The Veteran claims that he has a left arm disability caused by service.  Specifically, he asserts he injured his left arm when he also injured his back while loading a truck, and that this injury persists to the present day.  

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of certain chronic conditions, (such as arthritis) during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. §§  3.303(b), 3.307(a), 3.309(a) (2012).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain diseases, such as arthritis, may be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a) (2012).  In this case however, there is no medical evidence of arthritis until more than one year after service, as such, presumptive service connection would not be warranted in this case.

In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  

The same rules regarding lay evidence, as stated above, are applicable to service connection claims.


Evidentiary Background and Analysis

Service treatment records, dated in September 1965, show that the Veteran injured his back while loading a truck.  Examination at that time revealed point tenderness on the left of spine between scapulars; pain was noted on movement, and with flexion and extension of the left arm.  The diagnosis was acute muscle strain, and medications were prescribed.  X-rays were to be taken if pain persisted for more than four days.  The remainder of the Veteran's service treatment records, until his discharge in 1992, show no treatment for, or complaints of, any left arm or shoulder disability.

Records dated August 2007 show the Veteran complained of left shoulder pain and underwent MRI evaluation.  The Veteran appears to have been diagnosed with some sort of muscle strain at that time.

In August 2011, the Veteran testified that he strained his left arm and shoulder while loading trucks in active service.  He testified that he was given muscle relaxers at the time, but that he still had problems with his left arm.  The Veteran testified that the pain was both in the back shoulder and upper muscle, and it hurt every time he tried to lift something.  He testified that his range of motion was restricted and that he could not straighten his arm completely.  The Veteran testified that he still used medicated cream on his arm.

The Veteran received a VA examination for his left arm in January 2012.  After a thorough examination, the Veteran was found to have diagnoses of shoulder impingement, and rotator cuff/shoulder syndrome.  The examiner indicated, after an examination and a review of the Veteran's medical files, that in his opinion these conditions were not related to service.  In support of this opinion, the examiner noted that the Veteran's service records showed a one time muscle strain of the left scapula in September 1966.  Though the Veteran now reports pain since service, the examiner noted that there was no evidence that the Veteran was ever found to have complaints of pain in the shoulder, nor is there evidence of a diagnosis of any shoulder disability, for the remaining 26 years of his active duty period.  Following active duty, the records are silent until 2007, when the evidence shows the Veteran first complained of left shoulder pain and underwent MRI evaluation.  There is no evidence that a chronic condition related to the Veteran's left shoulder existed in active duty, instead it was an acute condition which resolved.  There is no evidence following active duty that an acute left shoulder condition existed until 2007, 15 years after active duty.  Therefore, the examiner opined that there was no link between the current left shoulder disability, and the one time acute muscle strain in service diagnosed in 1966.

Thus, taking into account all relevant evidence, the Board finds the preponderance of the evidence of record indicates that the Veteran's current left shoulder disability is unrelated to service.  The only evidence of record in service of a left shoulder injury appears to be acute, and further service treatment records for the remaining approximately 27 years the Veteran remained in service show no complaints of, or treatment for, any shoulder disability.  There is no medical evidence of record showing any complaints of, or treatment for, any shoulder disability until 2007, a further 15 years after the Veteran's separation from service.  Finally, the only medical etiological evidence of record indicates that the Veteran's current left shoulder disability is not related to service.

In reaching the above conclusion with respect to the Veteran's claim, the Board has not overlooked the Veteran's statements with regard to the history of his shoulder pain.  The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., pain in his shoulder; and the Board finds that the Veteran's reports have been credible.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board has considered the Veteran's reports along with findings from the medical evidence.  While the Veteran is competent to report pain in his shoulder, he is not competent to assign an etiological origin to this impairment.  The record does not reflect that the Veteran is competent to make such medical opinions.  

Furthermore, to the extent that the Veteran has asserted experiencing continuous or recurring symptoms since that injury, the Board must find such an assertion not credible.  As noted, the Veteran served on active duty for approximately 27 years after the initial injury, and his service treatment records are entirely negative for any complaints or treatment for a left shoulder disorder.  The Board is mindful of the decision in Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006), wherein the United States Court of Appeal for the Federal Circuit determined that the Board erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time.  The instant case, however, is distinguishable from Buchanan in that the Board is not relying solely on the fact that there are no documented complaints.  Rather, the Board is relying on the fact that the Veteran is documented as having undergone numerous physical examinations that revealed no evidence of musculoskeletal problems in the left upper extremity, and of completing several reports of medical history in which he did not report any problems with respect to the left upper extremity.  The Board finds the absence of complaints regarding the left upper extremity to be particularly significant as these records do reflect ongoing complaints of other musculoskeletal problems, such as with respect to the right knee and back.  Thus, the record in this case does not merely reflect a lack of documentation pertaining to the claimed disability, but instead, it contains substantial relevant documentation that fails to support a history of chronic left shoulder problems having manifested while in service.  Under such circumstances, the Board finds that the facts of this case are distinguishable from Buchanan, and that current assertions by the Veteran as to chronic left upper extremity complaints in service are not credible.

Accordingly, the objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination report have been accorded greater probative weight than the Veteran's lay assertions.

In summary, considering the medical evidence of record, and the Veteran's statements, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a left arm or shoulder condition.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49


ORDER

Entitlement to an increased rating for service-connected bilateral hearing loss, currently evaluated as noncompensably disabling, is denied.

Entitlement to service connection for a left arm disability is denied.


REMAND

The RO granted service connection for allergic rhinitis in a December 2012 rating decision.  Within one year of notification of that decision, in January 2013, the Veteran filed a statement declaring that he wanted a higher rating for his allergic rhinitis, based on the frequency for which he required treatment for this disability. The Board finds that this constituted a timely Notice of Disagreement initiating an appeal of this additional claim.  38 C.F.R. § 20.201 (2012). 

To date, the Veteran has not been provided a Statement of the Case (SOC) or given an opportunity to perfect the appeal of this additional claim to the Board by also filing a timely Substantive Appeal (VA Form 9 or equivalent statement).  Therefore, the Board must remand this claim, rather than merely referring it.  An SOC must be issued and the Veteran given an opportunity to perfect the appeal of this claim to the Board.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Send the Veteran a Statement of the Case (SOC) concerning his claim for a higher initial evaluation for his service-connected allergic rhinitis. 

Advise the Veteran that he still needs to file a timely Substantive Appeal, such as a VA Form 9 or equivalent statement, in response to the SOC to "perfect" an appeal to the Board concerning this additional claim.  He also must be advised of the time period he has to perfect this appeal.  If, and only if, he submits a timely Substantive Appeal in response to this SOC, thereby perfecting his appeal of this additional claim, should it be returned to the Board for further appellate consideration.

The appellant 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).



______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs