Citation Nr: 1324038	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  08-23 888	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for right ear hearing loss disability. 

2. Entitlement to service connection for a low back disability. 

3. Entitlement to service connection for a left elbow disability, separate and distinct from left ulnar neuropathy. 

4. Entitlement to service connection for a right elbow disability. 

5. Entitlement to service connection for right ulnar neuropathy. 

6. Entitlement to an initial compensable rating for left ear hearing loss disability. 

7. Entitlement to an initial compensable rating for eczema. 

8. Entitlement to a separate rating for left ulnar neuropathy. 


REPRESENTATION

Appellant represented by:	Stephen Vaughn, Accredited Agent


WITNESSES AT HEARING ON APPEAL

The Veteran and a witness


ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran had unverified periods of active service from October 1980 to January 1988.  He has verified active military service from January 1988 to October 1993 and from July 2003 to April 2004. 
	
This matter originally came before the Board of Veterans' Appeals (Board) from July 2007 and August 2007 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. 

In November 2010, the Veteran and a witness testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record. 

This matter was previously before the Board in August 2010 and May 2011, at which times it was remanded for further development. 

As previously detailed by the Board in May 2011, the Veteran is seeking both a separate rating for his left ulnar neuropathy, aside from his service-connected carpal tunnel syndrome (CTS), and that he is seeking service connection for a left elbow disability, separate and apart from left ulnar neuropathy.  The Board, at that time, waived any objection to the timeliness of the Veteran's substantive appeal with regard to these issues, finding that both issues were properly on appeal.  See Percy v. Shinseki, 23 Vet. App. 37 (2009). 

Following the most recent adjudication of this case in an April 2012 Supplemental Statement of the Case (SSOC), the Veteran submitted additional VA treatment records to be associated with the claims file.  The record does not show that the Veteran submitted a waiver of initial RO review for this evidence.  Because this evidence pertains to the low back and was received by the agency of original jurisdiction (AOJ) prior to transfer of the records to the Board, that claim must be remanded.  See 38 C.F.R. § 19.37(a) (2012).  However, the evidence is either duplicative or not relevant to the remaining issues decided herein below.  Accordingly, a waiver of initial agency of original jurisdiction (AOJ) consideration is not required, and the Board can proceed with appellate review of those claims.  38 C.F.R. 20.1304 (2012).  

The Veteran in February 2013 raised the issues of entitlement to an increased rating for posttraumatic stress disorder (PTSD), including entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).  This claim 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 issues of (1) service connection for a low back disability and (2) an initial compensable rating for eczema are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.






FINDINGS OF FACT

1.   The Veteran's current right ear hearing loss disability did not preexist his entrance into service in January 1988 and is shown to be less likely as not due to noise exposure during his period of service from January 1988 to October 1993.  

2.  The credible and probative evidence establishes that a right ear hearing loss was noted at entrance into active duty service in July 2003, but underwent no increase in severity during his second period of service.  

3.  The credible and competent evidence establishes that a diagnosis of (a) a left elbow disability, separate and distinct from left ulnar neuropathy, (b) a right elbow disability, and (c) a right ulnar neuropathy, has not been made prior to or after the Veteran filed his instant claim of service connection.  

4.  Mechanical application of the Veteran's left ear audiometry results to the rating schedule results in no more than a Roman numeral II for the left ear; subjective complaints involving difficulty hearing in ordinary environments and the rating schedule reasonably describe the overall disability picture.

5.  The Veteran's left ulnar neuropathy is consistent with a disability picture involving minimal distinct symptoms, such as pain and numbness, that are inseparable from left carpal tunnel syndrome; the rating schedule reasonably describes the overall disability picture.


CONCLUSIONS OF LAW

1.  The Veteran's right ear hearing loss was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 111, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 3.307, 3.309 (2013).

2.  The Veteran does not have a left elbow disability, separate and distinct from left ulnar neuropathy, due to disease or injury that was incurred coincident with or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).

3.  A claimed right elbow disability was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).

4.  Claimed right ulnar neuropathy was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).

5.  The criteria for an initial compensable disability rating for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.85 (2013).

6.  The criteria for a separate compensable disability rating for left ulnar neuropathy have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.20, 4.27, 4.69, 4.71a, 4.120, 4.124a, Diagnostic Codes 8515-8516 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information on how a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

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

Here, regarding the claims for service connection, the Veteran was sent a letter in July 2006 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  In light of the July 2006 letter, which was sent prior to the rating decision on appeal, no further development is required with respect to the duty to notify.   

Regarding the appeal for a higher left ear hearing loss rating and a separate rating for left ulnar neuropathy, the appeal arises from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection in July 2007.  The same July 2006 letter cited immediately above informed the Veteran of the basic elements to substantiate the service connection claims.  Because service connection was granted, the claims were substantiated and no additional notice is required as to the downstream issue involving entitlement to a higher initial evaluation.  Any defect in the notice is deemed not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA regarding these claims.

Next, as indicated, VA has a duty to assist a claimant in the development of a claim.  This duty includes assisting in the procurement of service treatment records (STRs), all relevant pre-and post-service treatment records, and by providing an examination, when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  "Relevant records" in the context of VA's duty to assist "are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the [] claim."  Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010).  Not all of a claimant's medical records will be relevant to a VA disability claim.  Id.  

The Board finds that all necessary development has been accomplished in this case, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In particular, the claims file contains the Veteran's available service treatment records, as well as all relevant post-service medical records available from VA and private treatment providers.  

Importantly, to the extent his complete STRs are not available, this is because he has not identified his National Guard unit.  The Board previously remanded this matter in May 2011 requesting that he identify his unit.  He did not respond.  Therefore, the Board must conclude that it would futile to remand for any further attempts to obtain any potentially missing STRs.  See 38 C.F.R. § 3.159(c)(1).  

Similarly, the Board's May 2011 remand provided him a further opportunity to identify any VA or non-VA treatment relevant to his claims, but he also failed to respond to the notice letter subsequently sent.  He wrote a letter in January 2012, but only identified evidence pertinent to the spine claim remanded herein below (the back).  

Because the Veteran has had ample opportunity to either submit pertinent records or provide sufficient information to allow VA to obtain them, the Board finds that all reasonable efforts have been made to obtain pertinent medical records.  

In addition to the documentary evidence, the Veteran's testimonial statements are of record, including testimony provided at a hearing before the Board.  Importantly, the Board member asked specific questions eliciting information regarding the material elements of each claim decided herein below.  The Board member also attempted to identify any pertinent evidence that may have been overlooked.  The Board member therefore satisfied all hearing officer duties as directed by 38 C.F.R. § 3.103(c).  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010); see also Procopio v. Shinseki, 26 Vet. App. 76, 80 (2012).

Furthermore, the Veteran was afforded several VA examinations in connection with this matter, most recently in August 2011.  The Board finds that the VA examinations are adequate to decide the case because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, including his lay assertions and current complaints, and because they describe the claimed right ear hearing loss, left elbow, right elbow, and right ulnar disabilities, plus the service-connected left ear hearing loss and left ulnar neuropathy in detail sufficient to allow the Board to make a fully informed determination.  See Monzingo v. Shinseki, 26 Vet. App. 97, 105 -106 (2012); Stefl v. Nicholson, 21 Vet. App. 123, 123 (2007).  The examination reports sufficiently inform the Board of the examiners' medical judgment on the material medical questions in this case, plus the examiner's essential rationale for the opinions.  See Monzingo, 26 Vet. App. at 105 -106.    

With regard to the rating claims on appeal, the Veteran has not asserted, and the evidence does not indicate, that his symptoms have materially increased in severity since the most recent evaluation in August 2011.  See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

The Board accordingly finds no reason to remand for further examination.    

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

The Board also finds that there was substantial compliance with the May 2011 Board remand directives.  Specifically, the Veteran was sent a notice letter upon remand in May 2011 requesting that he identify (a) all pertinent medical treatment providers and (b) the identify of his National Guard unit.  (He did not respond.)  Next, as directed, the Veteran underwent VA examinations in August 2011 to address the complex medical questions raised by the case, to evaluate the severity of the service-connected disabilities, and to supplement the prior opinion regarding the etiology of the Veteran's right ear hearing loss.  Finally, the matter was readjudicated in an April 2012 SSOC, as directed by the Board.  Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary.  See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to the internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999).

II.  Analysis

A.  Entitlement to Service connection

The Veteran seeks service connection for (1) right ear hearing loss; (2) a left elbow disability, separate and distinct from left ulnar neuropathy; (3) a right elbow disability; and (4) right ulnar neuropathy.  

Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999).  

By comparison, service connection may be granted for injury or disease incurred while on Active Duty for Training (ADT) .  38 U.S.C.A. § 101(24).  (ADT is defined as full-time duty in the Armed Forces performed by Reserves for training purposes.  38 U.S.C.A. § 101(22).)  Similarly, service connection may be granted for injuries incurred while on Inactive Duty for Training (IADT), but not for disease.  38 U.S.C.A. § 101(24).  (IADT is defined as other than full-time training performed by Reserves.  38 U.S.C.A. § 101(23).)  

In all cases, "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability.  In the absence of a proof of present disability there can be no claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis and "other organic diseases of the nervous system," may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  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.  Id.  However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection on a presumptive basis is also not warranted for periods of activity duty for training and inactive duty for training.  Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Bowers v. Shinseki, No. 10-3399 (Vet. App. Feb. 19, 2013) (ALS presumption not applicable without veteran status).

Service connection may otherwise 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).  

However, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  See VAOPGCPREC 3-2003.  

If no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  Therefore, according to the Federal Circuit Court in Wagner, to rebut the presumption of soundness under 38 U.S.C.A. § 1111, there must be clear and unmistakable evidence that (1) a veteran' s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service.  See id.; see also VAOPGCPREC 3-2003.  

The presumption of sound condition does not apply if an entrance examination was not performed contemporaneous to a period of ADT or IADT, because "[i]n the absence of such an [entrance] examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based."  Smith v. Shinseki, 24 Vet. App. 40 (2010).  

Moreover, the presumption of aggravation is not applicable to a period of active duty for training or inactive duty for training.  Smith v. Shinseki, 24 Vet. App. 40 (2010).  Rather, the claimant bears the burden of proof in establishing aggravation.  Donnellan v. Shinseki, 24 Vet. App. 167, 174-75, (2010).  In the context of periods of ADT and IADT, "the term 'aggravated' . . . means that in order for a claimant to have active service that qualifies him to be a 'veteran,' the evidence must establish that during his period of active duty for training, he experienced a permanent increase in disability beyond the natural progress of that disease or injury.  The claimant, rather than VA, bears the burden of proof in establishing both that (1) "the preexisting disability worsened in service" and (2) "that such worsening was beyond the natural progression of the disease."  The presumption of aggravation does not apply in the case of a claimant without "veteran" status, but "the benefit of the doubt standard applies to the question of veteran status."  Id. at 174-75.

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  In deciding whether the Veteran has met this burden, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011).

A layperson is competent to report on the onset and continuity of his symptomatology.  See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge).  Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4.  The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person.  See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential).

After weighing the probative value of the evidence, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).

In the following analysis, for sake of clarity, the Board will first address the claimed right ear hearing loss, followed by the claimed left elbow, right elbow, and right ulnar neuropathy.  

(1) Right Ear Hearing Loss

The Board finds, after careful consideration of all relevant evidence, that the preponderance of the more probative evidence weighs against the claim.  

Specific to claims of service connection for hearing loss, service connection may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss.  Hensley, 5 Vet. App. at 157.  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  

In the instant case, as an initial matter, the Board finds that the following facts are not in dispute.  

First, the Veteran is shown to be diagnosed with a right ear hearing loss disability for VA purposes as defined in 38 C.F.R. § 4.85.  Specifically, a post-service VA examination conducted in June 2007 shows audiological evaluation results as follows:  

HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
5
10
40

The speech reception threshold in the right ear was 96 percent.  This June 2007 evaluation, particularly, the 40 decibel threshold at 4000 Hertz, is consistent with impaired hearing to be considered a disability for VA purposes.  This diagnosis was made during the pendency of the instant appeal.  Therefore, the record demonstrates evidence of a current right ear hearing loss disability.  See Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. at 321; see also Romanowsky v. Shinseki, --- Vet. App. ----, 2013 WL 1907369, Vet. App., May 09, 2013 (NO. 11-3272).  

Next, the evidence confirms that the Veteran was exposed to loud noise during service.  He testified at his Board hearing that this noise occurred during service as an engineer in the Navy, where everything he did involved loud noise.  Hr'g Tr. 3.  He had hearing protection, but it was not possible to use it at all times.  Hr'g Tr. 3.  Then, he had additional noise exposure in the Army Reserve in Afghanistan as military police.  This involved noise exposure from mortar rounds and gun firing without hearing protection.  Hr'g Tr. 4.  The Board finds that the Veteran's testimony is credible.  In fact, it is consistent with his official military personnel file showing primary specialties as a mechanic and military policeman, respectively.  Accordingly, the evidence establishes exposure to loud noise during service, which satisfies the requirement for evidence showing the in-service incurrence of injury.  See Walker, 708 F.3d 1331.   

With consideration of these undisputed facts, the central remaining question before the Board concerns whether a causal relationship ("nexus") exists between the present right ear hearing loss disability and the Veteran's noise exposure during service.  See Walker, 708 F.3d 1331.   

On this question, the Veteran's two periods of active duty and Reserve service require distinct consideration.  

Active Duty from January 1988 to October 1993

With regard to his period of active duty from January 1988 to October 1993, the Veteran's August 1981 entrance examination appears to show a hearing loss disability for VA purposes.  Specifically, an audiogram reflects hearing acuity as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
20
15
40
50
60

The Veteran was assigned an H2 PULHES profile based upon hearing loss.  

Although a right ear hearing loss would appear to be noted at service entrance in August 1981, a VA examiner in June 2011 reviewed the entrance examination and found that it appears possible that a transposition error occurred at that time.  The examiner conceded that this transposition error could not be determined without resort to mere speculation, but explained that the hearing loss pattern noted on enlistment in August 1981 (asymmetric hearing loss worse in the right ear) is inconsistent with and opposite of the hearing loss pattern shown on later audiological examinations (asymmetric hearing loss worse in the left ear).  The Board finds that the June 2011 VA examiner's conclusion is persuasive evidence that the Veteran did not have a right ear hearing loss disability on entrance into service in August 1981.  Although the examiner commented that this could not be determined without speculation, the examiner's explanation is the most plausible and reasonable explanation for the otherwise inconsistent audiological results subsequently shown between the right ear and left ears.  The VA examiner's assessment is therefore accepted.  

Consistent with this determination, the right ear hearing acuity at service entrance (when transposing the results from left to right) was:  


HERTZ

500
1000
2000
3000
4000
RIGHT
25
10
15
10
10

These audiometry results do not show impaired hearing.  Accordingly, the Board finds that a hearing impairment was not noted at service entrance in January 1988.  Consequently, the Veteran is entitled to the presumption of soundness.  38 U.S.C.A. § 1111.  

Because the Veteran was sound at service entrance in January 1988, the remaining question involves whether the evidence establishes a nexus between the in-service noise exposure and the current hearing loss disability.  

On this question, the Board observes that the available STRs do not include a separation examination for this first period of service.  

More recently, the Veteran was scheduled for a VA examination to address this question.  This examination was necessary to decide the case, but he failed to report to the examination and has not presented good cause for this failure.  Therefore, the Board must decide the claim based on the evidence currently of record.  See 38 C.F.R. § 3.655 (2012); Turk v. Peake, 21 Vet. App. 565, 569 (2008).

Regardless of the Veteran's failure to appear, the June 2011 VA examiner noted that although the Veteran failed to report for examination, he could still reach an opinion in the matter.

In this regard, the June 2011 VA examiner opined that the Veteran's right ear hearing loss was less likely as not (less than 50/50 probability) permanently aggravated by, caused by, or a result of service.  The examiner explained, in pertinent part, that when comparing later service audiograms and June 2007 and September 2007 VA audiograms to the Veteran's August 1981 enlistment examination, there is no evidence of standard threshold shift (STS) aggravation of his preexisting hearing loss in the right ear, so there is no objective evidence of aggravation of the hearing loss that preexisted this period of active duty service.  Therefore, it was the examiner's clinical opinion that the apparently preexisting hearing loss in the right ear was less likely as not (less than 50/50 probability) permanently aggravated during active duty and that his current hearing loss in the right ear is therefore less likely as not causally related to active duty service.  The examiner concluded by commenting that he could not determine the etiology of his hearing loss in the right ear without resort to mere speculation.

The Board finds that this June 2011 VA examiner's opinion is probative.  Importantly, the VA examiner accurately reviewed the pertinent history.  The VA examiner then provided a clear and unequivocal opinion, which he supported by a reasonable and logical explanation.  

The Board acknowledges that the VA examiner did not clearly identify whether he based his opinion on the correct entrance examination audiometry results (as transposed above).  Similarly, the VA examiner's opinion primarily addresses the issue of aggravation.  This does not materially diminish the probative weight of the opinion, however, because the VA examiner's opinion expressly addresses direct causation.  More importantly, the VA examiner's reasoning, overall, establishes that  although the actual etiology of the Veteran's right ear hearing loss cannot be established, it was not due to service.  

Correspondingly, the Board acknowledges the June 2011 VA examiner's opinion that he could not determine the etiology of the Veteran's right ear hearing loss without resort to mere speculation.  Read in isolation, this appears to equivocate and undermine the examiner's earlier, more conclusive opinion.  Generally, such a speculative opinion would be afforded limited probative weight.  See Jones v. Shinseki, 23 Vet. App. 382, 389-91 (2010).  An overall reading of the VA examiner's report, however, shows that this statement is not intended to qualify the examiner's earlier opinion.  Rather, it is clear that the examiner is stating, essentially, that he cannot identify the exact cause of the Veteran's right ear hearing loss.  See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the VA examination report "must be read as a whole" to determine the examiner's rationale).  This statement does not reduce the probative value of the VA examiner's opinion.  To the contrary, an opinion is not inadequate simply because a VA examiner cannot identify the exact etiology of a medical condition.  In fact, a VA examiner is not required to determine the etiology of each condition, whether service connected or not.  See, e.g., Lemon v. Shinseki, 2013 WL 263920, *3 (Vet.App.,2013) (nonprecedential); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (A nonprecedential decision of the Court, while not binding, "may be cited or relied upon, however, for any persuasiveness or reasoning it contains.").  

This VA examiner's opinion is the most probative evidence addressing the central question of causation on this aspect of the claim.  To the extent it is deficient, the Board reiterates that the Veteran was scheduled for clinical evaluation at that time, but failed to report.  Accordingly, the Board must decide the claim based on this evidence now of record.  See 38 C.F.R. § 3.655.  

(The Veteran underwent an earlier VA examination in June 2007.  But, the examiner was unable to provide an opinion because the Veteran's STRs for his first period of service were not made available.  Thus, this VA examiner's opinion does not inform the Board's determination regarding the first period of active duty service.) 

The only remaining evidence concerning the Veteran's right ear hearing loss during the period of service is the Veteran's November 2010 Board hearing testimony.  Again, he explained the circumstances of his in-service noise exposure, which is not at issue.  Otherwise, he candidly stated that he "really didn't notice" actual difficulty hearing during service.  Hr'g Tr. 8.  Accordingly, his own statements provide no probative weight supporting the claim.  

July 2003 to April 2004

The Veteran's next, and main, contention is that his hearing loss is due to noise exposure in Afghanistan during his second period of service.  

As an initial matter, the Board finds that impaired hearing was noted at service entrance in July 2003.  

Historically, prior to this period of service, the Reserve STRs include an April 2000 physical examination.  Although left ear hearing loss is shown, an audiogram shows hearing acuity in the right ear as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
5
5
00
00
35
 
Then, immediately prior to this period of service, he filled out a personnel qualification record in June 2003.  This form shows that he certified, to the best of his knowledge and belief, that he had no medical condition or physical defect that would prevent his performance of active military service.  He was provided space to identify any exceptions, but wrote nothing.  

At the time he was activated for service in July 2003, he underwent a pre-deployment health assessment.  He endorsed his health as "very good," and he denied having any medical problems.  An audiogram showed right ear hearing acuity as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
5
5
-10
0
35

An associated Audiological Reference report notes "asymmetric" hearing loss.  

This July 2003 audiogram is significant for two reasons.  First, it was performed contemporaneous to his entrance in July 2003.  Thus, it is equivalent to an entrance examination.  Smith v. Shinseki, 24 Vet. App. 40 (2010).  Second, it shows impaired hearing in the right ear hearing loss at 4000 Hz.  See Hensley, 5 Vet. App. at 157.  In fact, the June 2007 VA examiner (previously noted herein above) reviewed these audiogram results and confirmed that the Veteran had hearing loss preexisting this period of service.  These two preliminary findings establish that a right ear hearing loss is noted at entrance to service in July 2003.  Although the hearing loss on entrance in July 2003 does not satisfy the requirements of 38 C.F.R. § 3.385, the Board finds that this is not necessary to be considered noted.  Importantly, the thresholds set forth in 38 C.F.R. § 3.385 only define the degree of hearing impairment that may be considered a disability for the ultimate purpose of granting service connection.  This regulation does not define what constitutes "impaired hearing" in other contexts.  See, e.g., Hensley, 5 Vet. App. at 159; Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007).  

On this basis, the Board finds that the Veteran is not entitled to the presumption of soundness.  Wagner, 370 F.3d at 1096. 

Although a right ear hearing loss was noted at service entrance in July 2003, service connection must be denied because the remaining evidence establishes that the right ear hearing loss was not aggravated during this period of duty.  Id.    

Specifically, the STRs include a March 2004 post-deployment health assessment.  The Veteran marked that his "Health got worse," including ringing in ears, but he did not identify hearing loss, which is some evidence that his hearing loss had not worsened.  

Furthermore, an April 2004 audiological evaluation shows audiogram results as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
5
5
25

The assessment as that time was right hearing within normal limits.  

The Board observes that this later assessment is inconsistent with evidence of aggravation because it indicates that hearing loss was not impaired in the right ear.  The Board is otherwise unable to draw any inferences from these STRs alone as they relate to the question of aggravation.  However, the Veteran underwent two VA examinations in connection with the instant claim, as previously identified, in June 2007 and June 2011, both of which were performed by the same examiner.  These two examinations establish that the right ear hearing loss underwent no aggravation.  

The June 2007 VA examiner found that the pre- and post-deployment audiograms showed no significant threshold shifts evident, and the Veteran's hearing was within normal limits in the right except for a "couple of borderline" 25 dB thresholds at 4000 and 6000.  The only significant change in the right ear, according to the VA examiner, was 15 decibels decreased at 2000 Hertz, which was still well within normal limits.  The VA examiner also noted the Veteran's in-service noise exposure, but nonetheless concluded that it is less likely than not that the Veteran's current hearing loss is a result of noise exposure during the 2003-04 Reserve deployment.  With specific regard to aggravation, the examiner reasoned that although acoustic trauma has been conceded, there is no evidence of any high frequency threshold shift consistent with aggravation of preexisting hearing loss or onset of any hearing loss due to acoustic trauma as noise-induced hearing loss.  The only significant change in hearing from pre- to post-deployment was the 15 dB decrease at 2000 Hz in the right ear, which is still well within normal limits and not at a frequency typically first affected by noise exposure.  The VA examiner further found that the audiometric thresholds at the instant examination were are also consistent with the July 2003 pre-deployment thresholds.  Therefore, it appeared to the VA examiner that the Veteran's current hearing loss preexisted his July 2003 deployment and his hearing loss had not significantly changed in either ear since that time in a manner consistent with hearing loss/aggravation of hearing loss from noise exposure.  

The Board now finds that this June 2007 VA examination is persuasive evidence showing that the right ear hearing loss underwent no increase in severity.  Importantly, the VA examiner accounted for all the favorable evidence, including the conceded noise exposure and the threshold shift at 2000 hertz.  The VA examiner nonetheless reached an unfavorable conclusion.  Most significantly, the VA examiner explained his justification for the opinion.  This explanation is logical and consistent with the other evidence of record.  The Board previously returned this matter for a supplemental opinion because the VA examiner did not have the STRs from the Veteran's first period of active duty.  This inadequacy does not reduce the probative value of the VA examiner's opinion as to the second period of active duty (which is a distinct period of service presenting separate legal and factual questions).  To the contrary, the Board finds that it is highly persuasive due to its clarity and thoroughness.  

The second VA examination was conducted in June 2011 by the same VA examiner.  Although the Veteran failed to report to the clinical evaluation, as noted herein above, the VA examiner nonetheless found that he could provide an opinion regarding right ear hearing loss.  Accordingly, he opined that the right ear hearing loss was less likely as not (less than 50/50 probability) permanently aggravated by, caused by, or a result of service.  With regard to the Veteran's second period of duty, the examiner reasoned that the July 2003 audiogram revealed preexisting mild hearing loss at 4000 Hz in the right ear and the separation audiogram from that period of service and later in a June 2007 VA examination and a September 2007 VA outpatient audiogram revealed no aggravation of that preexisting hearing loss.  Therefore, it was the examiner's clinical opinion that the right ear hearing loss was not caused by, a result of, or aggravated by his second period of active duty.  The VA examiner further explained that, when comparing later STR audiograms and the subsequent June 2007 and September 2007 VA audiograms to the August 1981 enlistment examination, there is no evidence of significant threshold shift aggravation of the preexisting hearing loss in the right ear.  Consequently, according to the VA examiner, there is no objective evidence of aggravation of the hearing loss.  Therefore, it was the VA examiner's clinical opinion that the apparently preexisting hearing loss in the right ear was less likely as not (less than 50/50 probability) permanently aggravated during active duty periods and that his current hearing loss in the right ear is therefore less likely as not causally related to active duty service.  

The Board again finds that this June 2011 VA examiner's opinion is probative.  To summarize, the VA examiner reviewed all pertinent evidence, accounted for the favorable evidence, but nonetheless provided a clear and unequivocal opinion, which the examiner justified by providing a cogent explanation.  See Nieves-Rodriguez, 22 Vet. App. at 304.  

Also, as explained above, the Veteran testified at his Board hearing that he did not identify any hearing difficulties during service.  Accordingly, his statements provide no evidentiary support for this later period of service.  

In light of the foregoing, the Board finds that the weight of the more persuasive evidence of record weighs against a conclusion that the Veteran's preexisting right ear hearing loss underwent worsening during his second period of service.  Without evidence of worsening, the Veteran is not entitled to the presumption of aggravation for the second period of service.  Wagner, 370 F.3d at 1096.  

Overall, with careful consideration of the relative probative value of the unfavorable evidence, which is considerable, with that of the favorable evidence, which is minimal, the Board finds that the preponderance of the most probative evidence of record weighs against the claim of service connection for right ear hearing loss.  Therefore, the claim is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).  

As a final matter, the Board wishes to acknowledge that the Veteran is currently service-connected for a hearing loss disability in the left ear.  Despite that favorable finding, the award of service connection for the left ear does not provide a basis for service-connecting hearing loss in the right ear.  Importantly, the grant of service connection for the left ear was based on the distinct circumstances of the left ear hearing loss.  For instance, the Veteran's STRs document a compensable hearing loss in the left ear during his second period of service.  There is no basis for awarding service connection in the right ear solely because the other ear is already service-connected (except for the limited purpose of determining the disability rating assignable for the service-connected ear, which is not implicated in the present determination.  See 38 C.F.R. §§ 3.383(a), 4.85(f)).  

(2) Left Elbow Disability, Separate and Distinct From Left Ulnar Neuropathy
(3) A Right Elbow Disability
(4) Right Ulnar Neuropathy

The Veteran also contends that service connection is warranted for a left elbow disability, separate and distinct from left ulnar neuropathy.  As he is already service-connected for left ulnar neuropathy, the scope of the instant claim does not include that disability.  See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). 

He separately seeks service connection for a right elbow disability and right ulnar neuropathy.  

In considering the claims, the Board has carefully considered all pertinent evidence of record.  The claims must be denied, however, because the evidence does not establish a current diagnosis of the claimed disabilities.  As the evidence and analysis for each of these three claims is related, the Board will address them together.  

As an initial matter, it is important to note that the Veteran filed the instant claim for all three disabilities in May 2006.  This is important because a disability must exist after this date.  See, e.g., Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. at 321.  Nonetheless, the Board is not precluded from considering evidence of a current disability predating the filing of a claim.  To the contrary, evidence of a diagnosis that falls outside of the claim period can establish a current disability as a matter of law.  Therefore, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, that report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  Romanowsky v. Shinseki, ___Vet. App. ___, 2013 WL 1907369, Vet. App., May 09, 2013 (NO. 11-3272) (finding that a VA examination, which the Board relied on, was inadequate where the examiner did not indicate, positive or negative, whether a recently diagnosed psychological disorder had resolved itself or was incorrectly diagnosed).  

Here, no such evidence is presented.  

First, a December 2003 VA Neurosurgery note shows complaints of his right arm and hand going numb for 2 months.  An electromyography study (EMG) was conducted in light of these complaints, but it was without evidence of radiculopathy.  

Further evaluation was undertaken in September 2006 in light of the Veteran's complaints of numbness and pain in both hands, getting worse, left arm also numb and painful.  The results of the prior evaluation were noted and a physical examination was performed.  Based on this consultation, the assessment was bilateral carpal tunnel syndrome (CTS) and left ulnar neuropathy, repeat nerve conduction velocity (NCV) test; bilateral wrist pain, possible osteoarthritis; and cervical disc disease with no upper extremity weakness.  

The Veteran also underwent a VA examination in July 2007.  It was noted that a  bilateral upper extremity EMG reported no cervical radiculopathy; rather, bilateral CTS and left ulnar neuropathy to pressure at the elbow were considered as the cause of the Veteran's complaints.  Diagnosis of cervical radiculopathy was ruled out by EMG, and he had no numbness or weakness of the upper extremities except that related to the right shoulder condition and bilateral wrist conditions, which are not of a cervical neurological cause.  The Veteran reported hyperextending his left elbow in a fleet-sponsored activity.  

In addition to further VA outpatient treatment, which does not reflect a confirmed diagnosis, the Veteran underwent a further VA examination in August 2011.  After exhaustively reviewing the Veteran's history and performing a thorough clinical evaluation, the VA examiner's assessment was that the Veteran did not have a peripheral nerve condition; he had right and left CTS with no evidence of right CTS on today's examination; and no evidence of left or right ulnar neuropathy on today's examination.  The examiner noted that a more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis.  A separate examination of the elbow showed normal left and right elbow, no objective evidence of claimed condition.  The examiner again noted that a more precise diagnosis could not be rendered as there is no objective date to support a more definitive diagnosis.  

The Board finds that the record provides no diagnosis for which service connection can be granted.  This case does not present a situation such as that in Romanowsky, where the record showed a prior diagnosis, but did not establish if or when a prior diagnosis had resolved.  Here, by contrast, the treatment records appear complete and show that although earlier evaluations resulted in tentative diagnoses, the later examinations, most recently in August 2011, show that these conditions were ruled out based on further clinical and diagnostic testing.  See Kahana, 24 Vet. App. at 440 (2011) (Lance, J., concurring) (setting forth the factual and analytic predicate for finding that an absence of evidence is substantive negative evidence).  Although the records confirm diagnoses involving (a) left carpal tunnel syndrome and left ulnar neuropathy and (b) right carpal tunnel syndrome (major), these disabilities are already service-connected.   

Although the Veteran credibly testified during his Board hearing describing his ongoing symptoms, he did not report a medical professional's contemporaneous diagnosis.  Moreover, his own opinion as to diagnosis is not competent.  Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, concerning diagnosis, falls outside the realm of common knowledge of a lay person.  In other words, the question of diagnosis here is one that is not observable to a lay person or the subject of common knowledge.  To the contrary, it is the subject of advanced medical knowledge concerning complex biological processes, anatomical relationships, and physiological functioning within the human body.  His own testimony is therefore accorded minimal probative weight, which does not controvert the remaining medical evidence noted immediately above.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

Thus, without threshold evidence establishing a current disability, the Board need not address the contingent questions concerning whether such disability was incurred during service, to include the question of nexus.  

Importantly, in this regard, the Veteran has submitted an official service department letter indicating that he may have been exposed to harmful chemicals during service in Afghanistan.  The Board takes notice that the provisions of 38 C.F.R. § 3.317 establish compensation for disabilities due to undiagnosed illness and medically unexplained chronic multi-symptom illnesses.  However, Afghanistan is, as a matter of law and geography, not in the Southwest Asia theater of operations (excluding for the limited purpose of establishing service connection for infectious diseases, which is not at issue here).  See 38 C.F.R. § 3.317(c)(3), (e)(2) (the southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations).  Accordingly, the Veteran's service in Afghanistan does not implicate consideration under 38 C.F.R. § 3.317.  

Accordingly, the Board finds after careful review of the entire record that the weight of the evidence is against the Veteran's claims of service connection for a left elbow disability, separate and distinct from left ulnar neuropathy; a right elbow disability; and right ulnar neuropathy.  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 claims, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.  

B.  Entitlement to Higher Disability Ratings

The Veteran seeks a compensable rating for left ear hearing loss disability and a separate rating for left ulnar neuropathy.

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities.  38 U.S.C.A. § 1155 (2011); 38 C.F.R. § 4.1 (2012).  The disability ratings are based primarily upon the average impairment in earning capacity resulting from a service-connected disability, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it.  38 C.F.R. § 4.15 (2012).  Where there is a question as to which of two disability ratings shall be applied, the higher disability rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2012).  Otherwise, the lower rating will be assigned.  Id.  All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where the claim concerns the propriety of the initial rating assigned, the pertinent evidence since the effective date of the grant of service connection must be considered as well as the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found). Fenderson v. West, 12 Vet App 119, 125-27 (1999).  Similarly, in claims for increased ratings, VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant.  38 C.F.R. § 4.3 (2012).  

Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it.  38 C.F.R. § 4.15.  

To afford justice in exceptional situations, however, an extraschedular rating may also be assignable.  38 C.F.R. § 3.321(b).  The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  This determination follows a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).

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.  Therefore, initially, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability.  Id.  If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule.  Therefore, the assigned schedular evaluation is adequate and no referral is required.  Id.  If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-16.  

The first two steps should be undertaken by comparing the disability picture of each service-connected disability with the criteria in the rating schedule for that disability.  The Board should compare the service-connected disability picture with the criteria in the rating schedule for that disability.  Johnson v. Shinseki, --- Vet. App. ----, 2013 WL 1224810, Vet. App., March 27, 2013 (NO. 10-1785).  Extraschedular consideration is undertaken on the basis of each individual service-connected disability.  Based on this disability-by-disability approach, the Board is not required to consider whether a veteran is entitled to referral for extraschedular consideration of his service-connected disabilities on a collective basis.  Id.  

If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111.

(1)  Left Ear Hearing Loss

Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100.  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).  Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345 (1993).  Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, and 4000 Hertz).  38 C.F.R. § 4.85.  This results in a Puretone Threshold Average for each ear.  Id.  The Puretone Threshold Average is charted, in conjunction with the Speech Discrimination Percentage for that ear, in Table VI of 38 C.F.R. § 4.85.  Id.  This results in a score, expressed as a Roman numeral, for each ear.  Id.  The Roman numeral scores for both ears are then charted in Table VII of 38 C.F.R. § 4.85, and the intersection of the scores provides the percentage of disability.  Id.

If impaired hearing is service-connected in only one ear, the non-service-connected ear will generally be assigned a Roman Numeral I.  Id. 

Exceptional patterns of hearing impairment, which cannot always be accurately assessed under the standards of 38 C.F.R. § 4.85, may be evaluated under the provisions of 38 C.F.R. § 4.86.  These provisions apply when either the puretone threshold at each of the four specified frequencies is 55 decibels or more, 38 C.F.R. § 4.86(a), or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 38 C.F.R. § 4.86(b).  If either of these provisions applies, each ear is evaluated separately.  See 38 C.F.R. § 4.86.  The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral.  When 38 C.F.R. § 4.86(b) is applicable, the assigned numeral is elevated to the next higher Roman numeral.  See Id.    

Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc.  See 38 C.F.R. § 4.85(c). 

In the present case the Board finds that a compensable initial evaluation is not assignable.  

The single examination during the period of appellate review consists of a  June 2007 VA examination, which shows left hearing acuity as follows:


HERTZ

500
1000
2000
3000
4000
LEFT
--
10
25
55
75

The speech discrimination score in the left ear was 88 percent.  

These June 2007 audiology results show an average decibel loss of 41.  From Table VI of 38 CFR 4.85, a Roman numeral II is derived for the left ear.  Because the right ear is not service connected, a Roman numeral I is used in Table VII of 38 CFR §§ 3.383(a)(3), 4.85.  A noncompensable (zero) percent evaluation is derived from Table VII of 38 CFR 4.85 by intersecting row I, the better ear, with column II, the poorer ear.  Accordingly, the June 2007 VA examination results do not provide a basis for awarding a higher scheduler evaluation.  

The Veteran was scheduled for a second VA examination in June 2011.  This examination was necessary to decide the claim, but he did not report for the examination.  He has not shown good cause for missing the scheduled examination. Under such circumstances, where the Veteran failed without good cause to report for the VA examination, the claim must be rated based on the evidence of record.  (The issue is considered an "an original compensation claim" because the Veteran is appealing the initial rating assigned.)  See 38 C.F.R. § 3.655(a), (b); Turk v. Peake, 21 Vet. App. 565, 569 (2008).  

Consequently, an initial compensable rating is not warranted for left ear hearing loss.  "Staged ratings" are not warranted because the schedular criteria for a compensable rating were not met at any time during the period under appellate review.  See Hart, 21 Vet. App. at 505; Fenderson, 12 Vet. App. at 126-27.

At his November 2010 Board hearing, the Veteran testified that he worked in a desk job helping people.  He did not identify any functional impact of his hearing loss.  However, his wife testified that he is always "fighting" with her, asking her to speak up.  The Board finds that this testimony does not support assignment of a higher schedular rating for the Veteran's left ear hearing loss, which requires mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann, 3 Vet. App. 345.  

Moreover, the disability picture described by this evidence, especially the testimony of the Veteran and his wife, is precisely the type of disability picture contemplated by the rating schedule.  In other words, the disability picture does not present any symptomatology not contemplated by the rating schedule (which compensates for all symptoms and functional impairments resulting from hearing loss).  See 38 C.F.R. § 4.85.  

Accordingly, the Veteran's disability does not exhibit an exceptional or unusual disability picture.  Rather, the rating criteria reasonably describe the disability level and symptomatology.  Therefore, the rating schedule is adequate to evaluate the left ear hearing loss, and referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating is not warranted.  See Thun, 22 Vet. App. at 115.
In making this determination, the Board is cognizant of the holding of Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  In that decision, the Court noted that unlike the rating schedule for hearing loss, the extraschedular provisions do not rely exclusively on objective test results to determine whether referral for an extra-schedular rating was warranted.  The Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Id. at 455.

Here, the June 2007 VA examination report contained a detailed description of the Veteran's subjective complaints, as indicated above.  

The Board has also considered the Veteran's statements in support of his claim. While the Board has considered this evidence in light of Martinak and the provisions of 38 C.F.R. § 3.321(b)(1), the Board does not find that the Veteran has described functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluations.  Rather, his description of difficulties with hearing loss is consistent with the degree of disability addressed by the assigned evaluation.

The Board is sympathetic to the Veteran's contentions regarding the severity of his left ear hearing loss.  However, according to the audiometric test results, as compared to the rating criteria, the Board finds that an initial compensable rating is not warranted.  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); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.  

A. Left Ulnar Neuropathy

The Veteran also contends that a separate compensable evaluation is warranted for left ulnar neuropathy.  

Because the Veteran is shown to be right-handed, the left hand will be considered the minor hand.  See 38 C.F.R. § 4.69.  

At present, the disability is assigned a single 10 percent schedular evaluation.  This evaluation is in combination with left carpal tunnel syndrome and is assigned under DC 8599-8515.  The code 8599 signifies that the rating is assigned by analogy.  See 38 C.F.R. § 4.27.  When an unlisted condition is encountered, a disability must be rated by analogy under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.  

The schedular criteria of Diagnostic Code 8515, concerning impairment of the median nerve, provides that mild incomplete paralysis is rated 10 percent on the minor side; moderate incomplete paralysis is rated 20 percent on the minor side; and severe incomplete paralysis is rated 40 percent on the minor side.  Complete paralysis is rated 50 percent disabling on the minor side.  38 C.F.R. § 4.124a.

The Board finds that the only potentially applicable diagnostic code alternatively for consideration is DC 8516, concerning the ulnar nerve.  Under DC 8516, mild incomplete paralysis of the minor side is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent; and severe incomplete paralysis is rated 30 percent.  Complete paralysis of the minor side is rated 50 percent.  38 C.F.R. § 4.124a.  

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.  Disability in this field is ordinarily to be rated in proportion to the impairment of motor, sensory or mental function.  Id.  The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124(a).  

Here, the Board finds that the evidence does not support a compensable rating as the evidence does not show a degree of symptomatology not compensated by the current 10 percent rating.  Specifically, the record shows minimal compensable symptomatology consistent with pain and numbness.  

The pertinent evidence includes a July 2007 VA examination which documents EMG results showing evidence of bilateral CTS and left ulnar neuropathy to pressure at the elbow.  However, evaluations at VA in September 2006, March 2010, and June 2010 reflect no abnormalities on sensory, motor, and reflex testing.  

Most recently, the Veteran underwent a VA examination in August 2011.  At the beginning of the report, the VA examiner observed that there was no evidence of ulnar neuropathy on examination.  With regard to the history of symptomatology, the Veteran reported that he had been told of nerve damage at the forearm based on 2003-2004 findings.  He informed the VA examiner that he had had a pins and needles feeling in hands since then.  Symptoms involved numbness in the hand; it would come and go; and he would just shake his hand to make it disappear.  He also complained of the pins and needles feeling together with numbness and some cramping of the little and ring finger, which was variable.  He believed it was getting worse, but he had not kept a record of it.  With regard to functional impact, the Veteran stated that he could not take his medication during the day, so he was always in pain.  He also explained that the pain in his hand limited all activities like the use of the computer, pencils, etc.  He would only take pain medication at night.  

In addition to the Veteran's own complaints, the VA examiner reviewed a 2003 EMG showing abnormal right upper and left upper extremities, consistent with bilateral median neuropathies at the wrist, and mild left ulnar neuropathy across the elbow.  
 
On physical examination, the August 2011 VA examiner found no abnormalities.  Muscle strength in the left hand was 5/5 throughout, and there was no muscle atrophy.  Reflex examination was 2+ throughout.  Sensory examination normal throughout.  Other sensory findings included patchy non-localizable, non-reproducible numbness in both hands.  Phalen's sign and Tinel's sign were both negative.  

At the end of the examination report, the VA examiner reiterated that there was no evidence of ulnar neuropathy on today's examination.  The VA examiner concluded that a more precise diagnosis could not be rendered because there was no objective data to support a more definitive diagnosis.  (Because there was no evidence of any disorder, the examiner remarked that an opinion was not indicated.)

On a separate examination of the elbow, the August 2011 VA examiner noted that no imaging studies had been performed because it was not clinically indicated.  Clinical evaluation revealed normal left elbow with no objective evidence of the condition.  Again, the VA examiner observed that a more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis.  

The VA examiner's opinion reflects minimal symptomatology involving the left ulnar neuropathy.  

Finally, the Board takes notice of the Veteran's November 2010 Board hearing testimony where he testified that he has had continuous pain and numbness in the hands since his injury during service.  Hr'g Tr. 17.  

The evidentiary record demonstrates complaints of numbness and pain in the left arm and hand.  However, there is no basis to support the assignment of a separate compensable rating for left ulnar neuropathy, even when assuming the credibility and competency of the Veteran's own statements regarding his symptoms.  Importantly, the Board observes that the Veteran is also service-connected for left CTS, and his statements detailing the severity of this disability mirror those related to his left ulnar neuropathy.  As the impairment attributable to the Veteran's left CTS mirrors that attributable to his left ulnar neuropathy, and the VA examiner was unable to find any objective evidence of left ulnar neuropathy, the Board finds no basis upon which a separate compensable rating for left ulnar neuropathy may be awarded.   See, e.g., Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that the Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so).  The evidence of record is inconsistent with at least the mild degree of disability needed to support assignment of a separate compensable rating for left ulnar neuropathy under any potentially applicable diagnostic code.  38 C.F.R. § 4.124a.  

There are no other potentially applicable diagnostic codes that would satisfy the criteria for a separate compensable rating.  Although DCs 5206 to 5208, 38 C.F.R. § 4.71a, provide schedular ratings for musculoskeletal disabilities of the elbow, the Veteran's disability does not involve the musculoskeletal system.  That notwithstanding, his disability would not meet the requirements for a separate schedular rating even if rating by analogy under these codes.  Of note, during the most recent evaluation in August 2011, the left elbow demonstrated range of motion involving flexion to 145 degrees and extension to zero degrees, both without evidence of painful motion.  There was no additional limitation of motion or functional impairment after repetitive use.  The remaining evidence of record shows a disability picture consistent with this August 2011 evaluation.  Again, a separate compensable rating may not be assigned without evidence of symptomatology resulting in impaired function.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011).  

To be clear, the Board is not finding that the Veteran does not suffer symptomatology consistent with his service-connected disability.  Rather, the Board finds that the current 10 percent most accurately reflects the degree of symptomatology shown to involve his combined disability manifested by left CTS and left ulnar neuropathy.  To assign a separate compensable rating for this disability picture would amount to pyramiding the same symptomatology under different diagnostic codes.  The applicable regulations preclude such a rating.  See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet App 259 (1994).

Referral for extraschedular consideration is also not appropriate.  Again, the Veteran's complaints consist of pain and numbness in the hands with resulting functional impairment involving difficulty using a computer, holding a pencil, and similar limitations.  The rating schedule reasonably describes this disability picture.  Specifically, DC 8516 sets forth ratings for symptoms which, at their worst, would produce a disability picture involving symptoms such as "griffin claw" deformity.  See 38 C.F.R. § 4.124a.  Here, only a minimal degree of symptomatology is shown, and no symptoms outside the rating criteria are demonstrated.  In short, the evidence does not reflect an exceptional or unusual disability picture.  Therefore, referral for extraschedular consideration is not in order.  38 C.F.R. § 3.321(b); Thun, 22 Vet. App. 111, 115.


ORDER

Service connection for a right ear hearing loss disability is denied.  

Service connection for a left elbow disability, separate and distinct from left ulnar neuropathy, is denied.  

Service connection for a right elbow disability is denied.  

Service connection for right ulnar neuropathy is denied. 

An initial compensable rating for left ear hearing loss disability is denied.  

A separate rating for left ulnar neuropathy is denied.  


REMAND

Upon review, the Board finds that further development is necessary on the claims of (1) service connection for a low back disability and (2) an initial compensable rating for eczema.


In May 2012, the Veteran filed a statement requesting VA to obtain his medical records from the VA outpatient clinic in Jackson beginning from January 2010.  He expressly identified these records as pertinent to his claimed back condition.  As the records are potentially pertinent to both remanded claims, however, the Board will direct that these records be obtained prior to any further consideration of each claim.  38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA's duty to assist applies only to records relevant to a Veteran's present claim).

Regarding the claim of entitlement to a compensable evaluation for eczema alone, the Board finds that remand is necessary for an addendum opinion.  Specifically, the Veteran was last evaluated in connection with this appeal in August 2011.  At that examination, the VA examiner observed "[a]n incidental healing scab ~ 2cm x 2 cm" just above the right ankle.  The examiner did not further describe this observation, however, to include what he meant by "incidental."  Accordingly, the Board finds that this VA examination does not fully describe the Veteran's disability picture sufficiently to allow the Board to resolve the appeal.  Consequently, an addendum opinion should be obtained for clarification.  

Should a complete physical examination be needed, the Board observes that if an appellant's condition is subject to active and inactive stages (skin conditions generally), an examination should be conducted during the active stage unless impractical due to the short time period of a flare.  See Ardison v. Brown, 6 Vet. App. 405, 408 (1994); see also Voerth v. West, 13 Vet. App. 117, 123-24 (1999).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain all of the Veteran's outstanding VA treatment records since January 2010.  Such records should be obtained and added to the claims file on an ongoing basis until the case is recertified to the Board.  

2.  All attempts to fulfill the initial development specified in paragraph 1 above must be documented in the claims file.  

All obtained records must either be printed and associated with the Veteran's paper claims file, or uploaded into the Veteran's electronic file contained in the Virtual VA system.  

If, after making as many requests as are necessary to obtain these records it is determined that the records sought do not exist or that further efforts to obtain those records would be futile, the AOJ should send notice to the Veteran, as directed by 38 C.F.R. § 3.159(e)(1), identifying: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA was unable to obtain; and (iv) a notice that the Veteran is ultimately responsible for providing the evidence.  The Veteran must be also notified that he is nonetheless allowed to provide such records herself, notwithstanding VA's inability to obtain the records.

3.  After completing the initial development requested in paragraphs 1-2 above, arrange for the Veteran's claims folder to be reviewed by the examiner who previously evaluated him in August 2011 (or a substitute if such examiner is unavailable), for the purpose of preparing an addendum opinion.  All necessary special studies or tests should be accomplished, if indicated.  **Where reasonably practicable and with the Veteran's cooperation, any physical examination should be scheduled during an active stage of the disease.**

A copy of this remand and all relevant medical records should be made available to the examiner - such records must be made available to the examiner either in the Virtual VA eFolder, or, if the eFolder is not available (such as if the examiner has no access to Virtual VA), then via paper copies that are printed out for the examiner.  

The examiner is asked to confirm which, if any, paper and/or electronic records were available for review. 

Accordingly, the examiner should review the pertinent evidence, including the prior examination results from August 2011.  Then, the examiner is asked to clarify what was meant where it was observed that the Veteran had a healing skin scab on the left ankle, which was identified as an "incidental finding."  Please clarify the term "incidental."  If this is a residual of the service-connected eczema, please so state.  Otherwise, please explain whether the scab is attributable in any way to the service-connected eczema, as the Veteran contends.  If the examiner determines that the scab is unrelated to the Veteran's service-connected eczema, the examiner must explain the reason for this determination.

To allow the Board to more easily understand the reasoning underpinning your opinion, please: (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and then (2) explain how those facts and information justify your opinion.  

A report of the examination should be prepared and associated with the Veteran's VA claims file.

4.  After completing the requested actions specified in paragraphs 1-3 above, plus any follow-up notification and/or development arising from the action taken above, the RO should readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement.  If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations.  The Veteran should be afforded the appropriate time period to respond.  

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 matters the Board is remanding.  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).



______________________________________________
S.C. Krembs
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs