Citation Nr: 1321950	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  07-26 890	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for blindness in the left eye.  

2.  Entitlement to service connection for squamous cell carcinoma of the tonsil (tonsil cancer).  

3.  Entitlement to a compensable disability rating prior to February 11, 2013, and in excess of 10 percent thereafter, for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel
INTRODUCTION

The Veteran served on active duty from May 1972 to February 1973.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2006 and November 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  

The August 2006 rating denied an increased rating for his service-connected bilateral hearing loss.  

The November 2008 rating decision reopened and denied the Veteran's claim for left eye blindness and denied service connection for squamous cell carcinoma.  Irrespective of the RO's treatment of the claim, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims).

In a March 2013 rating decision, a 10 percent rating was awarded for the Veteran's bilateral hearing loss, effective February 11, 2013.  Although this was a partial grant of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the rating assigned for his bilateral hearing loss disability and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active.  See AB v. Brown, 6 Vet. App. 35, 38 (1993). 

In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA.  The Board has reviewed both the paper and electronic claims files in rendering this decision.

The issue of entitlement to service connection for cancer of the tonsil 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.  A June 2005 rating decision declined to reopen the previously denied claim of entitlement to service connection for left eye blindness, because the evidence did not show that the Veteran's left eye problems were etiologically related to active service. 

2.  Evidence received since the June 2005 decision is cumulative and redundant and does not raise a reasonable possibility of substantiating the service connection claim for left eye blindness.  

3.  Prior to February 11, 2013, audiometric examinations correspond to no greater than a level II hearing loss for the right ear and no greater than a level II hearing loss for the left ear.  

4.  Beginning February 11, 2013, audiometric examinations correspond to no greater than a level IV hearing loss for the right ear and no greater than a level IV hearing loss for the left ear.  

5.  The Veteran's hearing loss disability does not present an exceptional or unusual disability picture.  


CONCLUSIONS OF LAW

1.  The June 2005 decision that declined to reopen the service connection claim for arthritis of the hands and shoulders is final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1103 (2012).

2.  Evidence received since the June 2005 rating decision is not new and material, and, therefore, the claim may not be reopened.  38 U.S.C.A. §§ 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).

3.  A compensable disability rating prior to February 11, 2013, and a rating in excess of 10 percent thereafter for bilateral hearing loss are not warranted.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.85, Diagnostic Code 6100, 4.86 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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) (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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 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 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.

VCAA letters dated in June 2006, May 2008, October 2008 and February 2011, fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 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.  These 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.  The letters also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

For purposes of evaluating the Veteran's request to reopen his claim of entitlement to service connection, the Board observes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that with regard to matters that involve a request to reopen a previously denied claim for service connection based upon the receipt of new and material evidence, in addition to providing notice of the evidence and information that is necessary to establish entitlement to service connection, VA must first notify a claimant of the evidence and information that is necessary to reopen the claim. To that end, the Court determined that in the context of a claim to reopen, the VCAA requires that VA must first review the bases for the prior denial of record, and then release a notice letter to the Veteran that explains the meaning of both "new" and "material" evidence, and also describes the particular type(s) of evidence necessary to substantiate any service connection elements that were found to be insufficiently shown at the time of the prior final VA denial.  Id.  

The October 2008 letter informed the Veteran that his claim had been previously denied, and that new and material evidence was needed to substantiate the claim to reopen and described what would constitute such new and material evidence.  The letter also specifically explained the basis of the prior denial on the merits, and directed the Veteran to submit any new and material evidence showing that his left eye disability was related to service.  This letter was fully compliant with the requirements set forth in Kent v. Nicholson.  Id.  

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) ("[N]o 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 and has submitted argument in support of his claims.  These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating and new and material evidence.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a 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) (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 (STRs) and VA medical records are in the file.  Also of record are the Veteran's Social Security Administration (SSA) records.  The Veteran has not indicated private treatment for his left eye or bilateral hearing loss disabilities.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. 

With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011).

The RO provided the Veteran appropriate VA audiological examination most recently in February 2013.  The VA examination report is thorough and supported by the other treatment evidence of record.  The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria.  The examination report also discussed the impact of the disability on the Veteran's daily living.  Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the February 2013 examination report in this case is adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Additionally, the Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court, noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Neither the Veteran nor his accredited representative has asserted that there is any deficiency in his June 2007 and February 2013 VA examinations.  The Board acknowledges that, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the February 2013 VA examination report discussed the functional effects, or lack thereof, of the Veteran's hearing problems.  As such, the requirements of Martinak have been fulfilled.  

With respect to the Veteran's request to reopen his claim for entitlement to service connection for a left eye disability, the Board notes that until a claim is reopened VA does not have a duty to provide a medical examination or obtain a medical opinion.  See 38 C.F.R. § 3.159(c)(4)(C)(iii) (2012). 

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).

Claim to Reopen

Legal Criteria

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Factual Background and Analysis

The RO originally denied entitlement to service connection for left eye blindness in a March 1974 rating decision.  The Veteran did not appeal the denial, and it became final.  

The Veteran filed multiple requests to reopen his service connection claim for a left eye disability.  In June 2005, the claim to reopen service connection for a left eye disability was most recently denied.  The RO found that no new and material evidence had been received to reopen this claim.  The Veteran was notified of this denial by a letter dated that same month.  He did not appeal the June 2005 denial, and thus, the June 2005 rating decision became final.  

The basis for the original March 1974 denial was that the evidence of record did not show that any current left eye disability was related to his active duty.  The RO specifically noted that although the Veteran had some decreased visual acuity shown at an eye examination in service, his discharge eye examination was within normal limits.  In the June 2005 rating decision, the RO found that new and material evidence had not been received to reopen his claim as the evidence did not show that any left eye disability was attributed to his active duty.  

The Veteran filed his most recent claim to reopen service connection for a left eye disability in April 2008.  

Evidence of record at the time of the June 2005 rating decision was as follows:  (1) service treatment records showing no treatment for any left eye disability or injury to the left eye, (2) VA treatment records and examinations showing the Veteran's complaints of left eye problems, described as macular retinopathy or residuals of corneal ulcers, and treatment records indicating that the Veteran was malingering with respect to his left eye blindness, (3) statements from family members indicating a change in the Veteran's sight both prior to and after service, (4) private mental health treatment records showing complaints of left eye problems, and (5) the Veteran's own statements related to his claimed blindness in the left eye.  None of these records linked any of the Veteran's left eye complaints to an event, injury, or disease incurred in service.  

The evidence of record received since the June 2005 rating decision includes: (1) the Veteran's own statements of contending he fell into the hangar while aboard a ship and after the fall he had aches and pains in the left eye and this caused his current left eye disability, (2) SSA records showing a history of glaucoma, and (3) VA treatment records showing pellucid marginal degeneration in both eyes, with the impact greater in the left than right, early cataracts in both eyes, and light perception only in the left eye.  The evidence of record received since June 2005 does not show that the Veteran has any left eye disability related to his military service. 

For evidence to be new and material in this matter, it would have to tend to show that the Veteran's current left eye disability was incurred in service, or is otherwise related to his military service.

On review of the evidence above, the Board finds that the evidence received since June 2005, with respect to his left eye disability, is not material to the claim.  Nothing in the added to the record relates to the reason the claim was originally denied; i.e., nothing therein shows or implies that the Veteran's current left eye disability is attributable to event, injury, or disease during service.  The evidence relates exclusively to current symptoms and does not show or imply any relationship between those symptoms and active service.  The Board has also considered the Veteran's lay statements that his left eye disability is related to his military service, but these statements are merely cumulative of his statements of record at the time of the June 2005 decision and the numerous denials before that.  

The Board has considered the left eye disability claim in light of Shade, 24 Vet App 110.  Although Shade asserts that a case must be reopened if any previously-unproven element of service connection is addressed, in this case the evidence received since June 2005 does not pertain to any element of service connection that was previously missing.  Accordingly, the circumstance cited by Shade is not applicable for the left eye disability claim. 

Although the additional treatment records and lay statements constitute new evidence, they are not material in that they do not show a possibility of substantiating the Veteran's claim.  Accordingly, the additional evidence received since June 2005 is not new and material and the claim may not be reopened.  Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Increased Rating

Legal Criteria

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  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; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited.  38 C.F.R. § 4.14.

The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes.  Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second.  38 C.F.R. § 4.85.  To evaluate the degree of disability for service-connected bilateral 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.  Id.  Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned.  38 C.F.R. § 4.86 (a) & (b).

Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

Factual Background and Analysis

The Veteran contends that his bilateral hearing loss warrants a compensable rating prior to February 2013, and a rating in excess of 10 percent beginning February 2013.

By way of background, service connection for bilateral hearing loss was awarded in a March 1991 rating decision (following the grant in a February 1991 Board decision).  The Veteran filed his most current request for an increased rating in May 2006.  In a March 2013 rating decision, the Veteran's bilateral hearing loss rating was increased to 10 percent, effective February 11, 2013.  

Following his increased rating claim, the Veteran was afforded a VA audiological examination in July 2006.  The examiner indicated that the Veteran's puretone results were not considered reliable and could not be used for adjudication purposes.  

The Veteran was afforded another VA audiological examination in June 2007, during which he reported 30 plus years of hearing loss.  Puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG.
RIGHT
35
40
55
80
53
LEFT
30
25
70
75
50

Speech recognition testing revealed scores of 88 percent in the right ear and 86 percent in the left ear.  The examiner indicated that this test results are considered to only be fairly reliable.  

Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of II for the right ear and II for the left ear.  Such a degree of hearing loss warrants a noncompensable evaluation under Table VII.  The Veteran does not meet the threshold for an exceptional pattern of hearing impairment in his left ear.  See 38 C.F.R. § 4.86 (a) & (b).  

The Veteran was afforded another VA audiological examination in February 2010, during which he reported difficulty with hearing due to tubes in his ears, ear popping, and hearing crickets in his ears.  The Veteran did not respond lower than 50 dB in either ear at any frequency.  The examiner indicated that she could not determine the amount of hearing loss the Veteran has, as this is the third time he has presented with nonorganic hearing loss.  She indicated that these results are not adequate for rating purposes.  

The Veteran underwent another VA audiological examination in February 2011 during which the audiologist indicated that behaviorally, it was very difficult to test the Veteran.  She indicated that he seemed to exaggerate his ability to understand conversation and complained of significant ear pain upon otoscopic examination and tympanometry any time his ears were touched.  Otoscopic examination and tympanogram were within normal limits, but with mildly reduced mid-ear pressure.  

The VA audiologist indicated that she could not record the Veteran's puretone thresholds due to the unreliability of his behavioral responses to puretone stimuli.  She indicated that the Veteran presented with elevated puretone response in comparison to speech recognition levels.  In other words, these two tests were incompatible, which indicates functional hearing loss.  She listed some levels in her report, but noted that she believes they are invalid.  She opined that the Veteran had some high frequency sensorineural deficit, but the exact degree could not be determined.  She noted that the Veteran easily understood commands at 45 dB, which is normal conversational speech range.  Speech recognition testing in both ears was 100 percent.  

The Veteran was most recently afforded a VA audiological examination in February 2013, and puretone thresholds, in decibels, were as follows:






HERTZ



1000
2000
3000
4000
AVG.
RIGHT
40
45
70
90
61
LEFT
35
30
80
85
58

The audiologist indicated that these thresholds are considered valid for rating purposes.  She noted that use of speech discrimination scoring is not appropriate for this the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination score, that makes the combined use of puretone averages and speech discrimination scores inappropriate.  

The Veteran was unable to describe his functional impact of his bilateral hearing loss to the examiner due to significant dysarthria.  

Using Table VIA in 38 C.F.R. § 4.85 (as speech recognition testing was not indicated), the Veteran received a numeric designation of IV for the right ear and IV for the left ear.  Such a degree of hearing loss warrants a 10 evaluation under Table VIA.  The Veteran does not meet the threshold for an exceptional pattern of hearing impairment in his left ear.  See 38 C.F.R. § 4.86 (a) & (b).  

Regarding the Veteran's ability to work and perform his daily activities, the examiner noted that he has difficulty communicating and would benefit from the use of hearing aids and help from a speech pathologist.  

The Veteran continues to seek treatment for his bilateral hearing loss at the VA Medical Center.  

The Board has considered the lay statements provided by the Veteran.  As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies.  Here, there is no evidence of a change in the Veteran's hearing between the June 2007 and February 2013 examinations and, therefore, nothing to suggest that an additional VA examination would be beneficial.  The probative medical evidence does not show the Veteran's hearing loss has ever reached a compensable level prior to February 11, 2013, or a level in excess of 10 percent disabling thereafter.  As such, additional staged ratings are inapplicable for the timeframes on appeal.  See Fenderson, 12 Vet. App. at 119.  Considering the results of the VA examinations, entitlement to a compensable disability rating prior to February 11, 2013, and in excess of 10 percent thereafter is denied.

Extraschedular Considerations

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 bilateral hearing loss disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. 

Specifically, the Veteran primarily reports decreased hearing acuity and ear pain.  As discussed above, the current noncompensable and 10 percent ratings for the timeframes listed above are adequate to fully compensate the Veteran for his decreased hearing acuity and other hearing-related symptoms. 

In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology.  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.


ORDER

As new and material evidence has not been received, reopening of the claim for service connection for left eye disability is denied.

A compensable disability rating prior to February 11, 2013, and a rating in excess of 10 percent thereafter, for hearing loss disability is denied.  

REMAND

Upon preliminary review of the evidence of record, the Board finds that further evidentiary development is necessary regarding the Veteran's claim of service connection for cancer of the tonsil.  

The Veteran contends that his claimed tonsil/throat cancer is related to his military service.  He specifically asserts that during service he ingested jet fuel and this resulted in his cancer of the tonsil.  

The Veteran's DD Form-214 indicates that he served with the Fighter Squadron in the U.S. Navy.  A review of his service personnel records show that he was assigned as a compartment cleaner.  

A review of the Veteran's service treatment records shows no treatment for tonsil cancer, but he was treated for tonsil-related complaints.  In July 1972, the Veteran was treated for complaints of a sore throat.  Physical examination revealed a red throat, and he was diagnosed as having pharyngitis.  He was treated in January 1973 for swollen glands in the throat.  Physical examination revealed a bright red tonsil with exudate.  The treating personnel's impression was strep throat.  Discharge physical examination in February 1973 revealed a normal clinical examination of the nose and throat.  There were no notations of any residual tonsil complaints.  

The Veteran was diagnosed as having tonsil cancer in 2006.  He indicated that prior to that time, he was regularly treated with antibiotics for throat-related complaints.  He is currently undergoing treatment for residuals of his tonsil cancer surgery and radiation.  

VA's duty to assist includes a duty to provide the Veteran with a proper medical examination or opinion when warranted.  In this respect, the Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

Here, the evidence of record reflects in-service treatment for throat and tonsil problems, the Veteran's competent reports of treatment for throat problems since service, and a current diagnosis of residuals of tonsil cancer.  He has not, however, been afforded a VA examination in conjunction with this claim.  The Board finds that the minimal threshold under McLendon has been met, and the Veteran's claim should be remanded for a VA examination to determine the nature and etiology of his tonsil cancer.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain any and all pertinent VA treatment records that have not yet been associated with the claims file. 

2.  Following receipt of any new records, schedule the Veteran for an appropriate VA examination for his tonsil cancer.  The claims file should be provided to the appropriate examiner for review, including the pertinent evidence contained in Virtual VA, and the examiner should note that it has been reviewed. 

After reviewing the file, obtaining a complete history from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's tonsil cancer had its onset during military service or is otherwise related to service.

It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).  The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 

The examiner should provide a complete rationale for any opinion provided.

3.  Then, readjudicate the claim.  In particular, review all the evidence that was submitted since the SOC.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision.  After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review.

By this remand, the Board intimates no opinion as to any final outcome warranted.

No action is required of the Veteran until he is otherwise notified but he 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).



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


Department of Veterans Affairs