Citation Nr: 1318831	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  06-31 757	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Entitlement to an increased initial rating for a service-connected bilateral hearing loss disability, evaluated as noncompensably disabling prior to November 24, 2010, and as 10 percent disabling from November 24, 2010.

2. Entitlement to service connection for residuals of a left ankle fracture.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

McBrine, M., Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from May 1974 to June 1974, and in the United States Navy from November 1977 to November 1980, and from January 1983 to January 1987.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which, inter alia, granted service connection for a bilateral hearing loss disability and assigned a noncompensable initial disability evaluation.  Subsequently, in December 2011, the RO increased the rating of the Veteran's bilateral hearing loss disability to 10 percent disabling from November 24, 1010.  This issue remains in appellate status because this rating does not represent the highest possible benefit.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  The September 2005 rating decision also declined to reopen the Veteran's claim of entitlement to service connection for residuals of a left ankle fracture.  In October 2010, the Board reopened the Veteran's claim for service connection for residuals of a left ankle fracture and remanded the claim for additional development of the medical evidence of record.  The two issues remaining in appellate status, entitlement to an increased rating for bilateral hearing loss, and service connection for a left ankle fracture, were again remanded for further development in May 2012.  All requested development having been completed, these claims now return again before the Board.

The Board points out that, in a June 2012 VA examination report, the veteran claimed that he felt his tinnitus, which is not in appellate status, was more severely disabling than its current rating contemplated, and in fact caused him to be completely disabled.  As this issue is not in appellate status, the question of an increased rating for the veteran's tinnitus is referred to the RO for appropriate action.



FINDINGS OF FACT

1. For the period prior to November 24, 2010, the evidence of record does not reflect that the Veteran's hearing loss disability has manifested in more than Level III impairment in the right ear and Level II impairment in the left ear.

2. For the period from November 24, 2010, the evidence of record does not reflect that the Veteran's hearing loss disability has manifested in more than Level IV impairment in the right ear and Level IV impairment in the left ear.

3.  The evidence clearly and unmistakably shows that that the Veteran's left ankle disability existed prior to service.  

4.  The evidence clearly and unmistakably shows that that the Veteran's pre-existing left ankle disability was not permanently aggravated by service.


CONCLUSIONS OF LAW

1. For the period prior to November 24, 2010, the Board finds that the criteria for a compensable evaluation, for the Veteran's service connected bilateral hearing loss, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2012).

2. For the period from November 24, 2010, the Board finds that the criteria for an evaluation in excess of 10 percent, for the Veteran's service connected bilateral hearing loss, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2012).

3. A left ankle disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (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 last remanded this case in May 2012 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 ankle condition, including opinions on whether it was a pre existing condition.  The Veteran was provided with these VA examinations in June 2012 and July 2012.  While the audiologist that examined the Veteran in June 2012 did not review the claims folder as directed in the remand, the Board observes that the June 2012 along with the Veteran's claims folder were subsequently reviewed by a VA audiologist who provided an addendum to the examination report in August 2012.  The claim was readjudicated in a March 2013 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 March 2005, April 2005, June 2005, May 2006, April 2007, October 2010, and May 2012, as well prior remands in October 2010 and May 2012, 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 July 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 July 2012.  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.

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), prior to November 24, 2010, and as 10 percent disabled from that date.  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 either before, or after November 24, 2010.

On the authorized VA audiological evaluation in May 2007 pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
35
65
70
70
60
LEFT
35
25
70
80
52.5

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 percent in the left ear.  The Veteran was diagnosed with a bilateral sensorineural hearing loss.

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

During the Veteran's RO hearing testimony in December 2006, he reported having continued problems with hearing loss, including problems hearing certain voices.  

The Veteran received a VA examination for his hearing loss on November 24, 2010.  On examination, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
35
60
70
70
58.75
LEFT
30
65
80
75
62.5

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 86 percent in the left ear.  The Veteran was diagnosed with a mild to severe sensorineural hearing loss from 1kHz to 8kHz bilaterally.

Reviewing the evidence from this VA examination report, and applying the results of this audiological evaluation to 38 C.F.R. § 4.85, Table VI, reveals Level III hearing impairment of the right ear and Level III hearing impairment of the left ear. Table VII [percentage evaluation for hearing impairment] indicates that, for a right and left ear with respective Level III and Level III hearing loss, a noncompensable percent disability rating is assigned.  Thus, the audiometric findings contained in the November 24, 2010 examination report are not consistent with a rating in excess of the 10 percent awarded effective the date the examination.  

The Veteran received an additional examination for his hearing loss in June 2012.  At that time, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
35
55
70
75
58.75
LEFT
35
60
80
80
63.75

Speech audiometry revealed speech recognition ability of 80 percent in both the right and left ears.  

Reviewing the evidence from this VA examination report, and applying the results of this audiological evaluation to 38 C.F.R. § 4.85, Table VI, reveals Level IV hearing impairment of the right ear and Level IV hearing impairment of the left ear. Table VII [percentage evaluation for hearing impairment] indicates that, for a right and left ear with respective Level IV and Level IV hearing loss, a 10 percent evaluation is warranted, the percentage that the Veteran is already in receipt of during this period.  As such the criteria for a higher evaluation during this period, based on this examination, have not been met.

The examiner noted that the Veteran's hearing loss did impact his activities of daily living, including his ability to work, somewhat, in that the Veteran reported he was unable to wear his hearing aids due to "excessive ear wax".  He reported that he speaks loudly in all situations and has to concentrate a great deal to hear even in a quiet situation.  The Veteran further reported that he has trauma from his constant tinnitus.  He reported he would continue to appeal his claim until he was rated at 100 percent, based on the emotional stress he goes through every day with his tinnitus.  During testing, he reported that he was getting upset because he had to strain to listen.  Following the test, he noted that he has to have others repeat what he says a lot, and that he planned to file a secondary claim for stress due to his tinnitus.  The Board notes that a claim for increased rating for tinnitus is not before the Board at this time, and as such, was referred for further action by the RO in the introduction of this decision.  

An August 2012 addendum to this examination indicates that the Veteran's claims file was reviewed, and confirms the Veteran's prior examination findings.

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, either for a compensable rating prior to November 24, 2010, or a rating in excess of 10 percent from November 24, 2010.  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).

In reaching this conclusion, the Board observes that 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 prior to November 24, 2010, or a rating in excess of 10 percent from November 24, 2010, 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 is 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 adequately 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; the Veteran appears to have recently reported that he feels his tinnitus renders him totally disabled, and the issue of increased rating for tinnitus will was therefore referred to the RO for further consideration.  However, a July 2012 report of VA examination found that the Veteran was able to perform all of his activities of daily living independently, and, even considering the Veteran's service connected disabilities, he would likely be able to seek gainful employment, either sedentary or moderate duty employment, based on his service connected conditions.  Thus, the Board does not find that the criteria for a claim for TDIU, based on the current claims in appellate status, have been met.


Entitlement to service connection for residuals of a left ankle fracture.

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).

A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111  (West 2002); 38 C.F.R. § 3.304(b) (2012). 

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012).  "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence").  It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131   (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334   (1993). 

A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  See Davis v. Principi, 276 F.3d 1341, 1345   (Fed. Cir. 2002); 38 C.F.R. § 3.306(a)  (2012).  A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens.  See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). 

The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F. 3d 1089   (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

The Board finds that the preponderance of the evidence of record is against a grant of service connection for a left ankle disability, to include as based on aggravation of a pre existing condition.  Reviewing the evidence of record, on the Veteran's April 1974 entrance examination, the Veteran reported sustaining a left ankle fracture in 1970.  A service treatment note dated June 1974 showed treatment for a left ankle sprain, including casting.  The Veteran has reported that he was medically separated from service for an ankle injury, however, the evidence of record shows that he was medically separated for bilateral sensorineural hearing loss.

Navy enlistment examination dated August 1977 indicated a history of fractured left ankle.  Service medical records dated November 1977 to October 1980, to include an October 1980 physical, showed no complaints of, treatment for, or diagnosis of, any left ankle disability.

US Navy service records for February 1983 to November 1986, to include a January 1983 report of examination, and a November 1986 discharge examination, show no complaint of, or treatment for, any left ankle disability.

VA treatment records dated 2004 and 2005 show no complaints of, or treatment for, any ankle disability.

During the Veteran's RO hearing testimony in December 2006, he reported that he broke and severely strained his ankle in service to the point that he was offered a discharge.  He reported ongoing problems with his ankle.

During a September 2007 VA examination, the Veteran reported that he broke his ankle in service in 1974, but denied further treatment in or after service.  He reported constant weakness and pain in the ankle, as well as a feeling of stiffness, swelling, instability, and giving way.  The Veteran was noted to have subjective complaints of left ankle pain, but with no evidence of fracture and the X-ray report was normal.

The Veteran had a further VA examination for his left ankle in December 2010.  At that time, examination showed range of motion after repetition to be 0 to 18 degrees of dorsiflexion, and 0 to 40 degrees of plantar flexion.  There was no pain with motion, no edema, erythema, warmth, crepitus, or tenderness noted on examination.  X-rays of the left ankle showed mild degenerative changes.  The Veteran was diagnosed with a resolved left ankle sprain, with no functional limitations.  The examiner stated that, in his opinion, the Veteran's current subjective complaints in his left ankle were not caused by or related to his left ankle sprain that occurred in 1977, which has not required any medical treatment since that time.  In support of that decision, the examiner indicated that there is no documentation of fracture of the left ankle in the Veteran's service treatment records.  Note from July 1974 refers to a plaster cast for two weeks for treatment of a left ankle sprain.  The examiner stated that a muscle strain is a temporary condition which resolved without functional limitation.  Also noted in a September 1977 X-ray which was normal, and X-rays in 2007 and 2010 which were also normal.  

The Veteran received a VA examination for his left ankle in July 2012.  At that time, he reported that he began experiencing pain in his left ankle in the 1970s.  He stated that he experienced daily severe throbbing pain in his left ankle.  He reported that symptoms were exacerbated by stepping in a hole, and relieved by walking.  He has not been seen by a doctor for treatment of his left ankle in the last 10 years.  The left ankle had full range of motion of flexion to at least 45 degrees, with no objective evidence of painful motion.  He had full range of dorsiflexion to 20 degrees or greater, with no objective evidence of painful motion.  Repetitive use testing showed no additional loss of range of motion.  The examiner found that the Veteran had no functional loss or functional impairment of his ankle.  There was no evidence of localized tenderness or pain on palpation of the joints or soft tissue of the ankle.  Muscle strength testing was normal, with no evidence of joint instability or laxity.  There was no evidence of ankylosis in the joint.  Imaging studies of the left ankle were noted to be normal.  The Veteran was diagnosed with a remote left ankle fracture that had resolved without residuals, with no functional limitation.

After examining the Veteran, and reviewing the claims file, the examiner indicated that the evidence of record clearly and unmistakably showed that the Veteran's left ankle fracture preexisted service, and that this pre existing condition was clearly and unmistakably not aggravated beyond its natural progression by an in service injury, event, or illness.  In this regard, the examiner noted that the Veteran's induction examination clearly indicates that the Veteran incurred a left ankle fracture in 1970, prior to his entry into service, and that a September 1977 orthopedic examination showed no residual of a left ankle fracture.  The physician also noted that a January 1983 reenlistment physical for the naval reserve showed a normal ankle examination.  The examiner further noted that current medical records and examination do not support a chronic or ongoing left ankle condition.  

In this case, the Veteran's prior ankle fracture was noted on his induction examination report, and in his December 2010 VA examination report, therefore the presumption of soundness does not apply to this disability and the Board finds it pre-existed service entry.  See supra 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012).

Since the medical evidence of record reflects that this ankle disability preexisted the Veteran's service, the question of aggravation must be addressed.  The evidence clearly and unmistakably shows that the Veteran's reported ankle disability did not undergo a permanent increase in severity beyond the natural progression of the disability during service.

The Board finds both the December 2010 and the July 2012 VA examination reports to be highly probative, as they are based on a thorough review of the Veteran's medical records and cites to relevant medical principles.  These opinions are also consistent with the other evidence of record and are supported by a detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.).  Furthermore, the opinions were obtained from a licensed medical professional rather than a lay person.  The opinions by the examiners, along with the lack of evidence of a worsening of any ankle problem beyond the natural progression of the disease, or in fact, with a lack of evidence showing any diagnosis of any left ankle disability since the Veteran's separation from service, is sufficient to rebut the presumption of aggravation of any preexisting ankle disability during service.  Therefore, service connection for an ankle disability is not warranted.

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 left ankle pain, including his statement that he injured it in service and that it has pained him to this day.  The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., pain in his ankle; and the Board finds that the Veteran's reports have generally 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 ankle, 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 clearly broke his ankle prior to service, as noted on his induction examination, and served on active duty for many years after his sprain in service, and his service treatment records are entirely negative for any complaints or treatment for a left ankle disorder after his 1974 sprain resolved.  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 ankle problems, and of completing several reports of medical history in which he did not report any problems with respect to the left ankle.  The Board finds the absence of complaints regarding the left ankle to be particularly significant as these records do reflect ongoing complaints of other disabilities.  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 ankle 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 ankle complaints since service are not credible.

Accordingly, the objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports 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 ankle 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 initial rating for a service-connected bilateral hearing loss disability, currently evaluated as noncompensably disabling prior to November 24, 2010, and as 10 percent disabling from November 24, 2010, is denied

Entitlement to service connection for the residuals of a left ankle fracture is denied.





____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs