Citation Nr: 1322251	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  06-38 113	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania


THE ISSUES

1. Entitlement to a rating higher than 10 percent for the service-connected glaucoma status post cataract and peripheral retinal tear, left eye. 

2. Entitlement to an initial rating higher than 10 percent prior to November 14, 2012 and higher than 40 percent beginning on that date for the service-connected degenerative disc disease of the lumbosacral spine.

3. Entitlement to a compensable rating prior to November 23, 2012 and a rating higher than 20 percent beginning on that date for the service-connected bilateral hearing loss.  

4. Entitlement to an initial rating higher than 10 percent prior to November 14, 2012 and an initial rating higher than 20 percent beginning on that date for the service-connected iliotibial band syndrome, claimed as a left leg disorder.  

5. Entitlement to an effective date earlier than December 21, 2005, for the grant of service connection for iliotibial band syndrome, claimed as a left leg disorder.  

6. Entitlement to a total disability evaluation based upon individual unemployability by reason of service-connected disability (TDIU), to include on an extraschedular basis.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

M. Mac, Counsel



INTRODUCTION

The Veteran served on active duty from March 1964 to December 1986. 

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2007 and January 2008 rating decision of the RO.  

A February 2013 rating decision increased the rating for the service-connected degenerative disc disease of the lumbosacral spine to 40 percent effective on November 14, 2012 and raised the rating for the service-connected bilateral hearing loss to 20 percent effective on November 23, 2012.  Thus the issues have been characterized as reflected on the title page.  

The February 2013 rating decision also granted service connection for iliotibial band syndrome, claimed as a left leg disorder effective on December 21, 2005.  A 10 percent rating was assigned prior to November 14, 2012 and a 20 percent rating effective on that date.  In June 2013, the Veteran's representative expressed disagreement with the effective date of the grant of service connection and the initial ratings that were assigned.  A Statement of the Case has not been issued and the Board is required to remand, rather than refer, this issue.  See Manlicon v. West, 12 Vet. App. 238 (1999).  

In January 2010, the Board remanded the case for further development, to include scheduling the Veteran for a hearing with a Veterans Law Judge.  

In accordance with the January 2010 remand directive, the Veteran was scheduled to appear at a hearing in March 2012 at the RO.  In February 2012, he requested that the hearing be rescheduled, but later reported in March 2012 that he was unable to attend any hearing and withdrew his request.  

In September 2012, the Board had also reopened the claim of service connection for a left leg disorder and remanded the issues currently on appeal for further development.  

In October 2007, the Veteran stated that he was satisfied with his "appeal/disagreement" pertaining to a higher rating for the service-connected left foot and left hip condition and that he was continuing to appeal his claim for a higher rating for a low back disability and his left leg (for which service connection was granted in the February 2013 rating decision).  

Neither the Veteran nor his representative have submitted any type of statements indicating that he did not intend to withdraw the above claims in October 2007.  In a February 2012 deferred rating decision, the RO noted that the Veteran had previously withdrawn his claims for a higher rating for the left foot and left hip and was raising the following new claims: increased rating for left foot, increased rating for left hip, and service connection for acid reflux and ulcer secondary to a service-connected disability.  

A review of the claims folder shows that these matters have not been adjudicated and they are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.  

A review of the Virtual VA paperless claims processing system notes a November 2009 rating decision that granted service connection for a depressive disorder as well as VA treatment records dating from 2000 to 2012.  Other documents in Virtual VA are either duplicative of the evidence of record or are not pertinent to the present appeal. 

Except for the claim for higher ratings for bilateral hearing loss, the remaining issues are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1. Prior to November 23, 2012, the service-connected bilateral hearing loss disability is shown to have been manifested by no higher than Level I hearing acuity in the right ear and Level I hearing of the left.  

2. Beginning in November 23, 2012, the service-connected bilateral hearing loss is shown to be manifested by Level VI hearing acuity in the right ear and Level IV hearing acuity in the left.  



CONCLUSION OF LAW

The criteria for the assignment of a compensable rating prior to November 23, 2012 and a rating higher than 20 percent beginning on that date for the service-connected bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.85 including Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In a claim for increase, the VCAA notice requirements are 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.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a)  as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre-adjudication VCAA notice by a letter dated in November 2007.  The Veteran was notified of the evidence needed to substantiate the claim for an increased rating as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, the provisions for disability ratings and for the effective date of the claim.  


Duty to Assist

VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim.  Post-service treatment records, and lay statements have been associated with the record.  The Veteran was afforded VA audiological examinations in January 2008 and in November 2012.  

The Board notes that clarification from the Veteran is necessary as to whether he is receiving disability benefits from the Social Security Administration (SSA).  

However, the Board finds that the SSA records would only be relevant to the Veteran's claims for higher ratings for the service-connected back and left leg disabilities as in February 2006 he indicated that he was about to receive minimum SSA benefits as a result of retiring early due to his back and left leg.  

In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the Court noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim.  As the SSA records are not relevant to the Veteran's claim of higher ratings for the service-connected bilateral hearing loss, there is no duty to obtain them with regard to this issue.  

In January 2008 and in November 2012 the Veteran was afforded VA audiology examinations.  The examiners complied with the criteria in 38 C.F.R. § 4.85 and the examinations are adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Thus, with respect to the Veteran's claim, there is no additional evidence which needs to be obtained as to this matter.  


Rating Criteria

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.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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 (2007).

The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing.  Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.  38 C.F.R. § 4.85.  The "puretone threshold average" as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are 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).

Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 the rating may be based solely on puretone threshold testing.  An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86(a),(b).

Analysis

The Veteran's claim for an increased rating for the service-connected bilateral hearing loss was received in March 2007.  The pertinent evidence during the current appeal period consists of the Veteran's lay statements and VA audiological examinations in January 2008 and in November 2012.  

In February 2008, the Veteran stated that, in a sound proof booth wearing a headset he could hear word pronunciation, but in a normal environment,  he had difficulty hearing and constantly asked people to repeat themselves.  In March 2008, he reiterated that he had trouble hearing normal conversations in person or over the telephone.  

On VA examination in January 2008, the Veteran reported having difficulty hearing and understanding his family and friends.  His puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were noted to be 35, 50, 60 and 70 and in the left ear were noted to be 30, 45, 60 and 70, respectively.  The puretone threshold average in the right ear was noted to be 54 decibels and the average in the left ear was noted to be 51 decibels.  Speech recognition scores were 94 percent correct for the right ear and 96 percent for the left.

Applying the results to TABLE VI, the findings yield a numeric designation of Level I for the right ear and Level I on the left.  Entering the resulting bilateral numeric designations to TABLE VII yields a no percent disability rating under Diagnostic Code 6100. 

On VA examination in November 2012, the Veteran reported hearing and communication difficulties in all listening conditions for each ear.  The examiner commented that, without the use of bilateral hearing aid amplification, the Veteran's hearing and communication abilities were significantly impaired and not functional for daily communication needs.  Puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were noted to be 45, 60, 80 and 90 and in the left ear were noted to be 35, 55, 70 and 80, respectively.  The puretone threshold average in the right ear was noted to be 69 decibels, and the average in the left ear was noted to be 60 decibels.  Speech recognition scores were noted to be 70 percent for the right ear and 80 percent for the left.

Applying the results in TABLE VI, the findings yield a numeric designation of Level VI for the right ear and Level IV in the left.  Entering the resulting bilateral numeric designations to TABLE VII yields a 20 percent disability rating under Diagnostic Code 6100. 

As during both VA audiological examinations during the appeal period the puretone threshold at each of the four specified frequencies 1000, 2000, 3000, and 4000 Hertz was not 55 decibels or more or 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an exceptional pattern of hearing impairment is not shown under 38 C.F.R. § 4.86.

While the Board recognizes the Veteran's complaints of decreased hearing acuity, disability evaluations are based on numeric designations and are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85, without resort to subjective interpretation.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In this case, such mechanical application warrants the assignment of a noncompensable rating prior to November 23, 2012 and 20 percent thereafter for bilateral hearing loss.

For these reasons, the evidence preponderates against the claim for a compensable rating prior to November 23, 2012 and rating higher than 20 percent beginning on that date for the service-connected bilateral hearing loss.  The Board finds that the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).


Extraschedular Consideration

Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. 
§ 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record).  

An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R.§ 3.321(b)(1); Thun, 22 Vet. App. at 116.  

Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected bilateral hearing loss.  The rating criteria contemplate puretone thresholds in decibels, speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, and in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the evaluation.  

Here, aside from general complaints such as difficulty hearing speech, noted by VA examiners during the January 2008 and November 2012 VA examinations, the Veteran had no specific complaints of functional effects caused by hearing loss.  This does not constitute additional functional effects, nor does it indicate an exceptional disability picture that renders the available schedular rating for the service-connected disability inadequate.  

For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate.  Referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).


ORDER

An increased compensable rating prior to November 23, 2012 and a rating higher than 20 percent beginning on that date for the service-connected bilateral hearing loss is denied.  



REMAND


A Rating Higher than 10 percent for the Left Eye

The Veteran's service-connected glaucoma status post cataract and peripheral retinal tear, left eye is rated under Diagnostic Codes 6013-6080.  During the pendency of the appeal, the criteria for rating eye disabilities were amended.  

However, because the Veteran filed this claim prior to December 10, 2008, the appeal will be considered under the old criteria.  73 Fed. Reg. 66543 (Nov. 10, 2008).  

Under the older Diagnostic Code 6013 for glaucoma, the disability is rated on impairment of visual acuity or field loss.  The older Diagnostic Code 6080 provides for rating the disability on impairment of field vision.  

During the current appeal period, the Veteran was afforded VA eye examinations in January 2008 and in November 2012.  The file includes uninterpreted Goldman tests dated in August 2007 and in November 2012.  Interpretation of these tests is necessary to determine whether the Veteran's meets the criteria for a higher rating under Diagnostic Code 6080.  

On remand, the November 2012 VA examiner should provide numeric interpretations of the August 2007 and November 2012 Goldman test to determine whether the Veteran's service-connected left eye disorder has warranted increased compensation throughout the pendency of this appeal. 38 C.F.R. §§ 3.312(c)(3); 3.159(c)(4); See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that VA must ensure the adequacy of any examination or medical opinion it provides).  The VA examiner should also clarify whether the visual field measurements have been made pursuant to 38 C.F.R. § 4.76.


Higher Ratings for Degenerative Disc Disease of the Lumbosacral Spine

In February 2006, the Veteran stated that, in December 2005, his private doctor, Dr. K., placed him on the Family and Medical Leave Act (FMLA).  In March 2006, the Veteran submitted a copy of Dr. K.'s certification on the Department of Labor Form WH-380.  Dr. K. indicated that the Veteran was eligible for FMLA due to treatment for his low back and left hip disability.  

As the Veteran's FMLA records are relevant to the issue of higher ratings for the low back disability, an attempt needs to be made to obtain them.  As the Veteran in his November 2007 TDIU claim indicated that he was employed by the Allentown Housing Authority from 1988 to 2006, on remand, the RO must ask the Veteran for authorization to contact this employer and obtain any and all information pertaining to the Veteran's use of FMLA benefits. 

In February 2006, the Veteran also asserted that he prematurely retired due to physical limitations caused by his back and left leg and was to begin receiving minimum SSA benefits.  As there may be pertinent medical records associated with SSA determinations, clarification is necessary from the Veteran as to whether he applied for SSA disability benefits, or SSA early retirement benefits, or both types of benefits.  


Left Leg Disorder: Higher Initial Ratings and Effective Date earlier than December 21, 2005, for the Grant of Service Connection 

The February 2013 rating decision  granted service connection for iliotibial band syndrome, claimed as a left leg disorder effective December 21, 2005.  A 10 percent rating was assigned prior to November 14, 2012 and a 20 percent rating thereafter.  

In a brief dated in June 2013, the Veteran's representative expressed disagreement with the effective date of the grant of service connection and the initial ratings that were assigned.  

The Board construes this as a Notice of Disagreement with the February 2013 rating decision.  A Statement of the Case has not been issued.  

Under these circumstances, a Statement of the Case must be issued.  See Manlicon v. West, 12 Vet. App. 238 (1999).  


TDIU

As the Veteran's claim for a TDIU rating during the current appeal period is dependent upon VA's determination as to the issues of higher ratings for the low back, left leg and left eye, the Board finds that the claims are inextricably intertwined and a Board decision on the claim for a TDIU rating at this time would be premature.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).  

Accordingly, the RO must review the Veteran's claim for a TDIU rating in conjunction with its readjudication of the Veteran's claims for higher ratings for the service-connected low back, left leg, and left eye disabilities, after the remand actions have been performed. 

Accordingly, these remaining matters are REMANDED for the following action:

1. The RO should take appropriate steps in order to obtain written authorization from the Veteran to contact his former employer to obtain a complete copy of any adjudication and the records underlying the adjudication for the Veteran's use of benefits under the Family Medical Leave Act.  If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e).
   
2. The RO should take all indicated action to ask the Veteran to clarify whether he applied for SSA disability benefits.  If the Veteran confirms that he applied for SSA disability benefits, copies of all medical records should be requested from  SSA.  If the records do not exist or further efforts to obtain the records would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e).

3. The RO then should forward the Veteran's claims folder to the VA examiner who conducted the November 2012 eye examination for the purpose of obtaining an addendum opinion.  If this examiner is not available, another appropriate examiner should be asked to review the file.  

No further examination of the Veteran is necessary, unless the examiner determines that additional clinical testing is necessary to ensure compliance with the Board's remand instructions. 

The examiner is requested to provide an addendum opinion as to the following:

a.) Whether the Goldman visual field test conducted in August 2007 and in November 2012 complied with the provisions of 38 C.F.R. § 4.76.  That regulation provides, in pertinent part, that the usual perimetric methods should be employed, using a standard perimeter and 3 mm white test object.  At least 16 meridians 22 1/2 degrees apart must be charted for each eye.  Not less than 2 recordings, and when possible, 3 should be made.  

If the Veteran's most recent Goldman test was not conducted in accordance with the foregoing regulatory specifications, additional testing should be administered. 

b) The numeric interpretations of the charts of the Goldman tests of record performed in August 2007 and in November 2012 as well as any subsequent Goldman test conducted pursuant to this remand.

4. The RO should take all indicated action in order to issue a Statement of the Case referable to the issues of an initial rating higher than 10 percent prior to November 14, 2012 and higher than 20 percent beginning on that date for the service-connected iliotibial band syndrome, claimed as a left leg disorder; and an effective date earlier than December 21, 2005, for the grant of service connection for the iliotibial band syndrome.  Only if the Veteran perfects an appeal should these claims be certified and returned to the Board and after any necessary development has been completed.  

5. After completing all indicated development, the RO should readjudicate the claims for increased ratings for the service-connected low back, left leg and left eye disabilities as well as entitlement to a TDIU rating in light of all the evidence of record.  If any benefits sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.  

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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




______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
\Board of Veterans' Appeals


Department of Veterans Affairs