Citation Nr: 1319273	
Decision Date: 06/13/13    Archive Date: 06/21/13

DOCKET NO.  12-28 653	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to a disability rating higher than 10 percent for bilateral hearing loss after May 5, 2012.

2. Entitlement to service connection for residuals of hemorrhagic fever.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis after May 5, 2012.


REPRESENTATION

Veteran represented by:	Mary Long, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran, who is the appellant, served on active duty from July 1953 to June 1955. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In March 2013, the Veteran appeared at a Video Conference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the claims file.  At the hearing, the Veteran requested that the record be held open for 60 days to allow for the filing of additional evidence and argument.  In May 2013, the Veteran's attorney submitted a supplemental brief on the issues, which has been considered in the decision rendered herein.

The issues of entitlement to service connection for residuals of hemorrhagic fever and of entitlement to TDIU, to include on an extraschedular basis, are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.




FINDING OF FACT

As of May 5, 2012, the Veteran's bilateral hearing loss has been manifested puretone thresholds and speech recognition scores equivalent to a III in the right ear and a IV in the left ear on Table VI under 38 C.F.R. § 4.85.


CONCLUSION OF LAW

The criteria for a disability rating greater than 10 percent for bilateral hearing loss as of May 5, 2012, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  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 and 3.326(a) (2012).

Duty to Notify

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Here, the Veteran was sent a letter in October 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Veteran was afforded a VA examination in May 2012 with respect to his claim of service connection for bilateral hearing loss.  In addition, the Veteran submitted a private audiological examination performed in November 2011.  Both records have been considered in rendering the decision herein.  The Board notes the Veteran's argument that the May 2012 VA examination was unnecessary in light of the private examination report previously submitted and that it should not be considered in rendering a decision.  VA has a duty to consider all of the evidence of record, which will include the May 2012 VA examination report.  See 38 U.S.C. § 7104(a); 38 C.F.R. § 3.102.  The Board notes that the VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at a March 2013 hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

At his hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination.  Ultimately the claim was remanded for a new examination.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Assigning Disability Ratings 

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  In this instance, the 10 percent disability rating on appeal is part of an initial staged rating assigned by the RO.  In light of the evidence of record, the Board finds the assigned ratings to be appropriate.

Hearing impairment is evaluated under Diagnostic Code 6100, with evaluations ranging from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second (hertz).  To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85.  The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 38 C.F.R. § 4.85(a).

Evidentiary Standards 

VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

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.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). 

When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

Facts and Analysis

The Veteran applied for and was granted service connection for bilateral hearing loss effective September 2011.  The Ro assigned a disability rating of 30 percent for hearing loss prior to May 5, 2012, and 10 percent thereafter, based on the findings on examination.  The Veteran appeals only the 10 percent disability rating.

At a private audiological evaluation in November 2011, the Veteran reported trouble hearing normal conversational speech, especially when background noise is present.  His pure tone thresholds, in decibels, were recorded as:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
45
75
70
75
LEFT
30
30
75
75
80

Maryland CNC speech recognition scores were 68 percent in the right ear and 76 percent in the left ear.  The audiologist recommended annual re-evaluation to monitor for future hearing loss, and to consider a hearing aide.

On November 2011 VA examination, the Veteran's pure tone thresholds, in decibels, were shown as: 




HERTZ



500
1000
2000
3000
4000
RIGHT
30
50
75
90
85
LEFT
30
45
75
80
85

His speech recognition scores were 86 percent in the right ear and 82 percent in the left ear.

At hearing in March 2013, the Veteran testified that he had difficulty hearing, especially with hearing women's voices like his wife's.  His difficulties in communicating made it hard for him to hold a job and had caused some strain in his marriage.  The Veteran asserted that his ability to hear had not improved at all between the November 2011 test and the May 2012 VA examination.

Based on the facts set forth above, the 10 percent disability rating assigned as of May 5, 2012 is appropriate.  Disability ratings for hearing loss disabilities are assigned purely according to the mechanical applications of the diagnostic criteria and the tables provided in VA regulations.  Under 38 C.F.R. § 4.85, Table VI, the pure tone threshold average for each ear, derived by adding the threshold at 1000, 2000, 3000, and 4000 Hertz, when compared with the percentage of speech discrimination, is used to derive a Roman numeral.  Then, using Table VII, a disability rating is derived by comparing the Roman numeral assigned for each ear, based on the intersection of the better and poorer ear readings.  

In this instance, the Veteran's right ear had an average of 75 and his left ear an average of 71.25, with speech discrimination of 86 percent in the right ear and 82 percent in the left ear.  The right ear findings correspond with Roman number III, while the left ear findings correspond with Roman numeral IV on Table VI.  When those Roman numerals are applied to Table VII, a disability rating of 10 percent is derived based on III in the better ear and IV in the poorer ear.  This is consistent with the assigned rating.

The Board notes that the law provides for higher disability ratings where the puretone threshold level at each of the four frequencies is 55 or greater, through the application of Table VIA.  38 C.F.R. § 4.86.  In this instance, the threshold of 55 is not reached for all of the specified frequencies and Table VIA may not be applied.

The Board further notes and acknowledges the Veteran's testimony at hearing that he did not feel his hearing had improved at all between the private testing in November 2011 and the VA examination in May 2012.  The Veteran is considered competent to provide evidence as to his subjective symptoms, including his ability to detect sound and speech.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, in this instance, the specific findings of the audiometric evaluation of hearing are what govern the assigned rating.  38 C.F.R. § 4.85.  Although the Veteran did not feel his hearing had improved to a measurable degree, the change in recorded audiometric findings indicated that there had been some improvement.  The audiometric findings, which are of more probative weight here with respect to the question of severity of hearing loss.

For these reasons, the disability rating assigned is appropriate and the Veteran's claim for an increased rating after May 5, 2012, is not warranted.

Extraschedular Rating

Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.

If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology related to his hearing loss, and provide for higher ratings for more severe symptoms.  While the Veteran has asserted that his hearing loss makes it difficult for him to communicate in a work setting, this manifestation is best addressed by evaluation of entitlement to TDIU, as discussed in the Remand section below.  As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).


ORDER

Entitlement to a disability rating higher than 10 percent for bilateral hearing loss after May 5, 2012 is denied.


REMAND

The Veteran seeks service connection for residuals of hemorrhagic fever which he has testified he contracted during his service in Korea.  Specifically, he reports that he has diminished kidney function which he believes resulted from this disease.  The Veteran's service treatment records are unavailable and presumed to have been destroyed at the 1973 fire at the National Personnel Records Center.  As such, VA has a heightened duty to assist the Veteran in developing the claim.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)).  The Veteran's testimony makes it clear that there are outstanding medical treatment records pertaining to his kidney disability which should be obtained and considered in adjudicating this matter.  

Under 38 C.F.R. § 3.159(c)(4), a VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  The brief filed by the Veteran's attorney includes evidence of hemorrhagic fever among service members in Korea which resulted in injury to the kidneys.  This evidence is sufficient to satisfy the low threshold of McLendon and necessitate a VA examination on remand.  

The Veteran also seeks an award of TDIU based on the cumulative effects of his posttraumatic stress disorder (PTSD), hearing loss, and tinnitus.  Prior to May 5, 2012, he had a combined disability rating of 70 percent and met the schedular requirements for consideration of TDIU.  However, no assessment of the effect of the service-connected disabilities on the Veteran's ability to work was obtained.  Since May 5, 2012, the Veteran's combined disability rating of 60 percent has not met the schedular requirements, but consideration of TDIU on an extraschedular basis is still possible.  As such, a TDIU examination should be provided on remand.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1. The RO/AMC should ask the Veteran to identify all sources of treatment or evaluation he has received for his kidney problems and any other symptoms he feels are the residuals of his hemorrhagic fever, and to provide any releases necessary for VA to secure records of such treatment or evaluation.  The RO should obtain for the record copies of the complete records of all such treatment and evaluation from all identified sources. 

2. Then, the Veteran should be afforded a VA examination by a nephrologist to determine whether it is at least as likely as not that any current decreased kidney functioning or other disability shown by the records obtained pursuant to the directive above was at least as likely as not (probability greater than 50 percent) in or aggravated by his military service, to include as a result of hemorrhagic fever therein.  The examiner is advised that the Veteran is presumed to be competent to report on his experiences in service.  Inasmuch as service treatment records are unavailable, the examiner is further advised that the lack of such records alone is not sufficient basis for concluding that there is no evidence of a disease in service.  

The examiner should provide the rationale for any opinion(s) rendered.  A copy of the claims file should be provided to the examiner for review.

3. The Veteran should also be afforded a VA examination to obtain an opinion as to whether his service connected disabilities would, either individually or in combination, preclude him from obtaining and maintaining gainful employment for which his education and occupational experience would otherwise qualify him.

The examiner should review the claims folder and any relevant records in Virtual VA.

If the Veteran is found capable of gainful employment, the examiner should provide examples of the employment for which the Veteran would be qualified and he would be able to perform.

If the Veteran is found to incapable of gainful employment, the examiner should indicate, to the extent possible, the date at which he became incapable of gainful employment as a result of his service connected disabilities.  The examiner should specifically indicate whether the Veteran's unemployability continued to exist after May 5, 2012.  The examiner should explain the specific factors which demonstrate unemployability.

The examiner should be advised of the Veteran's service-connected disabilities, namely PTSD, hearing loss, and tinnitus, as well as any disability found to be the result of hemorrhagic fever in service.

If an opinion cannot be rendered in response to these questions, the reason therefore should be explained.

A rationale for any opinion expressed should be provided.  It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. 

4. On completion of the foregoing, the claim should be adjudicated, to include the question of entitlement to TDIU on an extraschedular basis.  If any aspect of the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board.


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

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




______________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs