Citation Nr: 1323150	
Decision Date: 07/19/13    Archive Date: 07/24/13

DOCKET NO.  09-29 765	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD).

2.  Entitlement to service connection for Parkinson's disease.

3.  Entitlement to a rating for bilateral hearing loss higher than 20 percent prior to June 1, 2011, and higher than 30 percent thereafter.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel

INTRODUCTION

The Veteran served on active duty from September 1960 to September 1964. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Board remanded the appeal in May 2011 for further development.  It has been returned for further appellate consideration.

In a June 2012 rating decision, the Veteran's rating for hearing loss was increased from 20 to 30 percent disabling, effective June 1, 2011.  

Because a disability rating of 30 percent does not represent the maximum rating available for bilateral hearing loss, and because it does not cover the entire appeals period, the propriety of the ratings remains an issue for appellate review, and the Board has identified this issue as listed on the cover page.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35 (1993).

In October 2012, the Veteran submitted additional evidence to the Board in the form of a VA psychological assessment.  Although this evidence was not initially considered by the RO, it does not relate to or have a bearing on the issues on appeal, and therefore need not be referred to the RO for review prior to a Board decision on the merits of the claims on appeal.  See 38 C.F.R. § 20.1304(c) (2012).  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 

The issue of entitlement to service connection for a psychiatric disability was raised by the Veteran in an October 2012 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issue of service connection for a pulmonary disability, to include COPD, 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.  The Veteran was not exposed to herbicides, including Agent Orange, in service, and his current Parkinson's disease is not related to in-service exposure to fuels or chemicals, or related to service in any other way.

2.  During the appeals period pertinent to the Veteran's August 2007 claim for increase, his bilateral hearing loss was manifested by Level VI hearing in the right ear and Level IV hearing in the left ear prior to June 1, 2011, and Level VI hearing in each ear beginning June 1, 2011.


CONCLUSIONS OF LAW

1.  The criteria for service connection for Parkinson's disease have not been met.  38 U.S.C.A. §§ 1116(f), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 

2.  The criteria for a rating for bilateral hearing loss higher than 20 percent prior to June 1, 2011, and higher than 30 percent thereafter, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

In addition, for certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for arthritis is one year.  38 C.F.R. §§ 3.307, 3.309(a).  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases.  38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Also, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam War (the period beginning on January 9, 1962, and ending on May 7, 1975).  38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). 
 
If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  

The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research.  See, e.g., 68 Fed. Reg. 27630-27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999).

Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure.  See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303.

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997).  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462   (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183.

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A.  § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 

In this case, as reflected in a February 2008 statement and his July 2008 notice of disagreement, the Veteran asserts that his current Parkinson's disease is the result of in-service exposure to aircraft fuels in both liquid and vapor form, or that such disease could have been caused by exposure to Agent Orange.  

In the February 2008 statement, the Veteran asserted that he participated in flying 55 gallon drums of chemicals from different Army bases without knowing what he was being exposed to.  In his July 2008 notice of disagreement, the Veteran asserted that he had transported what he believed to have been Agent Orange and/or other herbicides to be used in Vietnam, that he remembered that the barrels were marked with triangles, and that he believed that they were filled with chemicals that led to his current Parkinson's disease.  The Veteran's service personnel records reflect that he served as an aircraft mechanic, and that his schooling in service included "Engine Run" and "Refuel-Defuel" courses.

However, considering the pertinent evidence in light of the governing legal authority, the Veteran's service connection claim must be denied. 

Initially, the record does not reflect, and the Veteran has not contended, that Parkinson's disease began in service or until many years after the Veteran's service from September 1960 to September 1964.  Service treatment records, including the August 1964 report of examination for separation from service, reflect no findings, complaints, or history related to Parkinson's.  The earliest finding of Parkinson's disease in the record is documented in a June 2007 VA treatment record, when the Veteran was evaluated for upper limb tremors and the diagnosis was Parkinson's disease.  Furthermore, in his January 2008 notice of disagreement, the Veteran acknowledged that he was first diagnosed with Parkinson's disease in June 2007.

Rather, the Veteran contends that such Parkinson's disease is related to in-service fuel, chemical, or herbicide exposure.  However, the evidence does not establish that the Veteran's Parkinson's disease is in any way related to in-service exposure to fuels, chemicals, or herbicides, or that it is related to service in any other way.

While the Veteran served during the Vietnam War from January 9, 1962, until his separation in September 1964, service personnel records reflect that he did not serve in Vietnam or anywhere else in Asia during that time, and the Veteran has not asserted otherwise.  Thus, the Veteran is not presumed to have been exposed to herbicides under 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii).

Also, while service connection may still be established by showing that his Parkinson's disease is in fact causally linked to in-service Agent Orange exposure, such exposure has not been established in this case.  The only evidence of any such exposure to herbicides, including Agent Orange, is the Veteran's own statements in February 2008 and July 2008.  The Veteran is competent to report matters within his own personal knowledge.  See Layno, 6 Vet. App. 469 (1994).

The Veteran himself is very unclear on the issue of whether he actually transported herbicides or whether drums he did transport had herbicides in them.  In any event, he has never indicated direct knowledge that he, in fact, was exposed to herbicides or that he was ever directly responsible for transporting herbicides or that the containers he transported by plane ever leaked (in this regard, it is important for the Veteran to understand that herbicides were not flown to Vietnam from the United States, they were normally shipped).  His statements are, at best, equivocal.

However, even assuming that the Veteran transported or came into contact with barrels of liquid materials during his service as an aircraft mechanic, any assertion that the Veteran came into contact with any herbicide such as Agent Orange during service appears to be only mere speculation by the Veteran, and not a matter of which he has any personal knowledge.  While in his July 2008 notice of disagreement the Veteran asserted that he had transported what he believed to have been Agent Orange and/or other herbicides to be used in Vietnam, his only support for this assertion is that he remembered that the barrels were marked with triangles.  Furthermore, to the extent that the Veteran asserted in July 2008 any actual knowledge that the contents of barrels he helped transport included Agent Orange or other such herbicides, such an assertion is not credible in light of the Veteran's earlier February 2008 statement that, when transporting such drums of chemicals, he did not know what substances he was being exposed to.  

Moreover, there is no supporting evidence whatsoever for the Veteran's bare assertion that he might have come into contact with canisters that contained Agent Orange or herbicides at some points during his period of service.  Thus, the evidence does not weigh in favor of a finding that the Veteran was exposed to a herbicide agent, including Agent Orange, during active service, and the presumptive service connection provisions of 38 C.F.R. § 3.309(e) are not applicable.  

Regarding the Veteran's assertions that his current Parkinson's disease is the result of in-service exposure to aircraft fuels in both liquid and vapor form or other such chemicals, even assuming that the Veteran was exposed to aircraft fuel, vapors, or other such chemicals during his service and an aircraft mechanic, there is no competent evidence of record, such as medical evidence suggesting a nexus, indicating that a the Veteran's current Parkinson's disease may be associated with any such exposure or with service in any way, and neither the Veteran nor his representative has identified any.  The Veteran has repeatedly asserted that such exposure might have led to his current disability, and a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation.  See Jandreau, 492 F.3d at 1376-77.  However, while the Veteran might believe that his Parkinson's disease is medically related to such in-service exposure, such a determination of causation in this matter extends beyond an immediately observable cause-and-effect relationship, and is one that cannot be made without medical expertise.  As such, the Veteran is not competent to address such etiology in the present case.

Accordingly, the Board finds that the claim for service connection for Parkinson's disease must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56.

Increased Rating

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition.  Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment.  See 38 C.F.R. § 4.1.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart, 21 Vet. App. 505. 

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by puretone audiometric tests.  To evaluate the degree of disability resulting from service-connected hearing loss, the Schedule establishes eleven levels of impaired efficiency, numerically designated from Level I to Level XI.  Level I represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI.  38 C.F.R. § 4.85, Tables VI, VII (2012). 

Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85 (2012).  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a) (2012).

Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86.  When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a) (2012).

When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b) (2012).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

In this case, the only audiological evaluations conducted during the time pertinent to the Veteran's August 2007 claim for increase that include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test were conducted in November 2007 and June 2011.  

The report of a November 2007 VA audiological examination reflects that, on audiological testing, pure tone thresholds in the right ear, in decibels, were 40, 65, 90, and 105 at 1000, 2000, 3000, and 4000 Hertz, respectively; pure tone thresholds in the left ear, in decibels, were 20, 60, 80, and 100 at 1000, 2000, 3000, and 4000 Hertz, respectively.  Pure tone threshold averages were 76 decibels in the right ear and 65 decibels in the left ear.  Speech discrimination scores using the Maryland CNC list were noted to be 74 percent in the right ear and 80 percent in the left ear.  At the time, the Veteran reported having an increase in hearing loss and tinnitus, and having the greatest difficultly hearing all conversation, but especially in background noise.

In a February 2008 statement, the Veteran asserted that he could communicate one on one in a quiet setting but that in a crowded room with background noise he could not communicate.  In a July 2008 statement, the Veteran asserted that he believed that his hearing loss was greater that 20 percent disabling, and that, during his hearing test, he had a lot of trouble with word recognition so that the audiologist told him to just "guess at them."

The report of a July 1, 2011, VA audiological examination reflects that, on audiological testing, pure tone thresholds in the right ear, in decibels, were 45, 75, 100, and 105+ at 1000, 2000, 3000, and 4000 Hertz, respectively; pure tone thresholds in the left ear, in decibels, were 35, 70, 95, and 100 at 1000, 2000, 3000, and 4000 Hertz, respectively.  Pure tone threshold averages were 81.25 decibels in the right ear and 75 decibels in the left ear.  Speech discrimination scores using the Maryland CNC list were noted to be 68 percent in the right ear and 72 percent in the left ear.  At the time, the Veteran reported that the impact of his hearing loss on his activities were that he had poor social interactions and hearing difficulty.

Considering the pertinent evidence in light of the governing legal authority, a rating for bilateral hearing loss higher than 20 percent prior to June 1, 2011, and higher than 30 percent thereafter, must be denied. 

Applying the method for evaluating hearing loss to the audiological results of record, prior to June 1, 2011, the highest pure tone threshold average for the right ear was 76, and for the left ear was 65; the lowest speech discrimination scores were noted to be 74 percent in the right ear and 80 percent in the left ear.  Beginning June 1, 2011, the highest pure tone threshold average for the right ear was 81.25, and for the left ear was 75; the lowest speech discrimination scores were noted to be 68 percent in the right ear and 72 percent in the left ear.  Such results reveal Level VI hearing in the right ear and Level IV hearing in the left ear prior to June 1, 2011, and Level VI hearing in each ear beginning June 1, 2011.  Application of these findings to Table VII corresponds to a rating of 20 percent prior to June 1, 2011, and a rating of 30 percent thereafter, under 38 C.F.R. § 4.85, DC 6100.

Also, as pure tone threshold at each of the four specified frequencies has at no time been shown to be 55 decibels or more, and pure tone threshold has not been shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the results do not reveal an exceptional pattern of hearing loss in either ear, and Table VIA is not for application.  See 38 C.F.R. § 4.86.  There are no audiological evaluation results of record indicating a higher level of hearing loss during the appeals period prior to and after June 1, 2011, pertinent to the Veteran's August 2007 claim for increase.  There is no other indication in the record of worsening from the level of hearing loss measured at the time of the November 2007 VA examination to the increased level noted at the time of the June 1, 2011, VA examination until the time of that examination, and the Veteran has not identified any such evidence.

The Board notes the Veteran's July 2008 assertion that during his hearing test he had a lot of trouble with word recognition so that the audiologist told him to just "guess at them."  However, there is nothing in the November 2007 VA examination report or elsewhere in the record, other than the Veteran's statement, to indicate that any tests, including word discrimination tests, might have been performed improperly.  Moreover, even assuming its credibility, the Veteran's statement, alone, does not establish that any such testing was performed improperly.

The Board recognizes the Veteran's assertions of difficulty with conversation, especially in situations involving a lot of background noise such as in crowds.  While the Board acknowledges the difficulties that the Veteran experiences as a result of his bilateral hearing loss, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Thus, the Board must base its determination on the audiological evaluation results of record, and is bound by law to apply VA's rating schedule based on such results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012); see also Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b).  

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

In this case, the record does not reflect that the average industrial impairment from the Veteran's bilateral hearing loss disability would be in excess of that contemplated by the assigned ratings.  As noted above, the results of the two probative VA audiological evaluations reveal hearing loss corresponding to a rating of 20 percent prior to June 1, 2011, and a rating of 30 percent thereafter, based on application of the results to Table VI, and the Veteran has not submitted any audiological evidence indicating that his hearing loss disability was worse at any time before or since June 1, 2011, pertinent to his August 2007 claim for increase.  While the Board recognizes that the Veteran's hearing loss has caused him difficulty with conversation, especially with background noise such as in crowds, which has affected his social interaction, such manifestations are adequately contemplated by the schedular criteria for ratings of 20 and 30 percent under DC 6100, which explicitly contemplate the hearing acuity combinations for bilateral hearing loss measured prior to and beginning June 1, 2011.  These manifestations of the Veteran's hearing loss, and all other manifestations noted in the record, are not exceptional in terms of the disability level and symptomatology of a person with the Veteran's measured level of hearing acuity in each ear, and have not been shown to be productive of more than the average impairment in earning capacity commensurate with such hearing ability.  

In addition, the record reflects that the Veteran has not required frequent hospitalizations, and there is no indication of marked interference with employment due to his hearing loss.  

In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration.

Finally, there has been no assertion or evidence that the Veteran is unemployable due to his service-connected disability.  Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

Thus, the Board finds that the criteria for a rating for bilateral hearing loss higher than 20 percent prior to June 1, 2011, and higher than 30 percent thereafter, have not been met at any time pertinent to the Veteran's August 2007 claim for increase.  Accordingly, there is no basis for further staged rating of the Veteran's bilateral hearing loss pursuant to Hart, and a higher rating must be denied.  In reaching this conclusion, the Board has considered the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert, 1 Vet. App. at 53-56. 

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  Section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

In the present case, required notice was provided by letter dated in September 2007, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman.  

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.   See Bernard v. Brown, 4 Vet. App. 384 (1993). 

This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In this case, a VA examination was not obtained for the service connection claim because the evidence did not surpass the low threshold set by McLendon.  Where the evidence does not establish that a disability may be associated with service, there is no need to obtain a medical opinion regarding any such nexus.  As discussed above, the evidence does not establish that the Veteran was exposed to herbicides, including Agent Orange, in service, and there is no medical or other competent evidence suggesting a nexus between the Veteran's Parkinson's disease and any in-service fuel or chemical exposure or any other such evidence that would warrant obtaining a medical nexus opinion.

In this regard, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted.  In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277.  On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection.  Waters, 601 F.3d at 1278-1279.  Here, as the only evidence that the Veteran's claimed disability is related to military service is the conclusory generalized lay statements of the Veteran, which are unsupported by even speculative medical evidence.  Accordingly, the Board finds that referral for a VA medical examination is not warranted.  

The Veteran's service treatment records, VA medical treatment records, identified private treatment records, and Social Security Administration (SSA) records have been obtained.  Also, the Veteran was provided VA examinations in connection with his hearing loss claim in November 2007 and June 2011.  These examinations and associated reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims.  The examination reports were based on examination of the Veteran by examiners with appropriate expertise, and the June 2011 examiner reviewed the claims file.  38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007).  The examination reports also addressed the effects of the Veteran's hearing loss on his daily activities and overall functioning.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  

Moreover, the RO has substantially complied with the Board's May 2011 remand instructions.  The RO has obtained the Veteran's SSA records and, as noted above, the Veteran was provided an adequate VA examination in June 2011, during which the claims file was reviewed, and which, along with the other evidence of record, provided sufficient information to decide the appeal.  

Under these circumstances, the Board finds that there has been substantial compliance with its remand instructions, and an additional remand to comply with the Board's directives is not required.  See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 

Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

ORDER

Service connection for Parkinson's disease is denied.

A rating for bilateral hearing loss higher than 20 percent prior to June 1, 2011, and higher than 30 percent thereafter, is denied.





REMAND

As reflected in February 2008 statement and his July 2008 notice of disagreement, the Veteran asserts that he has current pulmonary disability is related to his in-service exposure to aircraft fumes, including from fuel, notwithstanding his smoking history.

Service personnel records reflect that the Veteran served as an aircraft mechanic and that courses he completed during service included "Engine Run" and "Refuel-Defuel."  The record reflects that the Veteran has received treatment for diagnoses of chronic airway obstruction, COPD, restrictive lung disease, and lung muscle dysfunction.  

An August 2006 VA treatment record reflects that the Veteran reported having been exposed to jet fuel during his service from 1960 to 1964 and smoking for over forty years, and that the treating VA pulmonary physician diagnosed no evidence of significant obstructive disease, however, the following, among other points, was noted:

restrictive disease due to fuel exposure

There is no indication of what, if any, records were reviewed by the VA physician in making these determinations, and there was no explanation of how restrictive lung disease was related to the Veteran's exposure to fuel more than 40 years prior, or whether any obstructive disease, including COPD, was related to any such fuel exposure.  

Under these circumstances, the Veteran should be provided an examination and opinion addressing whether he has a pulmonary disability, to include COPD, and, if so, whether such disability is related to his period of service.  See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any pulmonary disability, to include COPD.  

Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine whether the Veteran has any such disability.  For each such disability diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or more) that such disability is related to his service from September 1960 to September 1964, to specifically include any in-service exposure to aircraft fumes, including from fuel, as a an aircraft mechanic.

The examiner should specifically consider the Veteran's various diagnoses of chronic airway obstruction, COPD, restrictive lung disease, and lung muscle dysfunction, and the August 2006 VA treatment record indicating a diagnosis of restrictive disease due to fuel exposure.

A complete rationale for all opinions must be provided.

2.  After completing the above development, and any other development deemed necessary, readjudicate the issue remaining on appeal.  If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matter 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).


______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs