Citation Nr: 1324932 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-23 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for vertigo, to include as secondary to service-connected hearing loss and tinnitus. 2. Entitlement to a compensable disability evaluation for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from August 1972 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In his June 2010 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge. The hearing was scheduled to take place in January 2011 and he was notified. He failed to appear for it, and has not provided an explanation for his absence or requested to reschedule the hearing. Therefore, the Board will proceed to a decision on his appeal as if his request for a hearing was withdrawn. See 38 C.F.R. § 20.704(d) (2012). In June 2011 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. FINDINGS OF FACT 1. The Veteran has not been shown to have a current ear disability that manifests as vertigo or dizziness. 2. The Veteran has consistently had Level I hearing loss in his right ear and Level II hearing loss in his left ear. CONCLUSIONS OF LAW 1. A disability that manifests as vertigo or dizziness was not incurred or aggravated in service and is not proximately due to, or the result of, or chronically aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. The criteria for a compensable disability evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.353, 3.385, 4.1-4.14, 4.85, 4.86 Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in December 2008. This letter advised the Veteran of what evidence was required to substantiate his service connection and increased rating claims, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim and a secondary service connection claim. Dingess, 19 Vet. App. at 47. See also 38 C.F.R. § 3.310 (2012). The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA examinations from September 2008 and August 2011. The Veteran reported receiving a single instance of private medical treatment for vertigo in 1994. In a March 2009 statement, he provided the address of the facility but stated, "I have contacted the clinic for a record of this visit but they no longer have the records from that time." Therefore, there is no prejudice to the Veteran in the RO's not attempting to obtain these records. The examinations were adequate because they were based on thorough examinations, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiners did not provide rationales with regard to the Veteran's vertigo claim, but this is because he was not diagnosed with a disability that manifested as vertigo or dizziness. Therefore an opinion and rationale are not required. This case was remanded in June 2011 so that the Veteran's representative could be afforded an opportunity to review the claims file and provide a VA Form 646. The RO notified the Veteran's representative of this in an August 2012 letter and the representative did not reply. The case was also remanded so the Veteran could undergo a VA examination, which he did in August 2011. The examiner was specifically asked to provide an opinion as to secondary service connection. This was not done because the examiner found instead that the Veteran did not have a current disability. Thus, the Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. This regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that he has an ear disability manifested by vertigo or dizziness. In March 2009, he stated that in the fall of 1994, he awoke with severe dizziness such that he was unable to stand or walk. He reported vomiting and nausea. He stated that he sought treatment at a private clinic and was diagnosed with vertigo and labyrinthitis by a private physician that he never saw again. He stated that he was given an injection and sent home. He asserted that he was dizzy to a lesser degree for several more days and since then he had had "several recurrences" of vertigo that have been less severe. The Veteran reported that he has flashes of dizziness and light headedness on a regular basis. The Veteran is competent to state that he experiences dizziness. Layno v. Brown, 6 Vet. App. 465 (1994). Further, there is no evidence in the record that would render his statement not credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether his reported episodes of dizziness are caused by an ear condition, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). His statement is not probative evidence in support of a finding that he has a current disability. At his September 2008 VA examination, the Veteran denied experiencing vertigo, balance, or gait problems. He received no ear-related treatment except for routine hearing tests. The examiner stated that he had no active ear disease and found that he had "bilateral ears without abnormalities on exam." In an April 2009 VA psychiatric telecare note, the Veteran reported problems with his medications. He stated that he had a dizzy spell while driving the morning that he called VA. The health care provider noted that VA had increased the Veteran's medications recently because he had stopped taking them due to depression. The Veteran thought that his dizzy spell was caused by "the increase in Baclofen," and so he did not want to take it again. Although the Veteran's statement is both competent and credible, it is not probative evidence in support of a finding that he has a disability that manifests as vertigo or dizziness because he was not diagnosed with such a condition as the result of his reported symptoms. At his August 2011 VA examination, the Veteran reported having dizziness in the past. His worst case was approximately 15 years prior, and it was the only time he sought treatment. He stated that he received an injection and was prescribed pills. The examiner concluded that, "[t]here is no complaint or report of any current disorder manifested by vertigo or imbalance." She explained that with regard to dizziness and lightheadedness, the Veteran reported having it 15 years prior and was diagnosed with labyrinthitis by a private physician. More recently an April 2009 VA treatment report noted a complaint of a dizzy spell. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). There is no probative evidence of record showing that the Veteran has had an ear disability manifested by vertigo or dizziness during the appeal period. Although he reported a dizzy spell in April 2009, which was during the appeal period, no diagnosis was rendered. Further, two VA examiners have concluded that he does not have such a disability. The first element of a service connection claim is not met. Hickson, 12 Vet. App. at 253. Accordingly, the preponderance of the evidence of record does not show that the Veteran has a diagnosis of an ear disability manifested by vertigo or dizziness for VA purposes. Therefore, the Board finds that the service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Evaluation Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran submitted his claim for an increased evaluation for hearing loss in August 2008. "The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once a disability is established, levels of hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores, resulting in a Roman numeral designation for hearing loss. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are assigned by combining the level of hearing loss in each ear. 38 C.F.R. § 4.85(e), Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination" is used to determine a Roman numeral designation (I through XI) for hearing impairment in each ear based on consideration of speech discrimination as well as puretone threshold averages, unless the examiner certifies that use of the speech discrimination test is not appropriate. In that case, table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average" is used. Table VII, "Percentage Evaluation for Hearing Impairment" is then used to determine the percentage evaluation by combining the Roman numeral of each ear. 38 C.F.R. §§ 3.383, 3.385, 4.85(b). The Veteran underwent a VA audiology examination in September 2008. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 20 25 75 80 LEFT -- 30 35 80 95 The average puretone threshold was 50 in the right ear and 60 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 98 percent in the left ear. Applying the results of the examination to Table VI of the VA regulations yields a Roman numeral value of I in the right ear and II in the left ear. A January 2010 audiogram for the purposes of obtaining hearing aids showed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT -- 25 30 80 80 LEFT -- 35 40 80 95 The average puretone threshold was 54 in the right ear and 63 in the left ear. Speech audiometry revealed speech recognition of 92 percent in each ear. However, the speech recognition scores were obtained using the Northwestern University Auditory Test No. 6 (NU-6) word list, instead of the Maryland CNC word list. Accordingly, this report is inadequate for evaluating the severity of the Veteran's bilateral hearing loss for VA purposes. 38 C.F.R. § 4.85. The Veteran underwent a second VA examination in August 2011. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 25 35 80 85 LEFT -- 35 40 80 95 The average puretone threshold was 53 in the right ear and 63 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in both ears. He reported having difficulty hearing conversations. This was a description of the effect of his disability on his daily activities. 38 C.F.R. § 4.10. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Applying the results of the examination to Table VI of the VA regulations yields a Roman numeral value of I in the right ear and II in the left ear. If the Veteran has either of two exceptional pattern of hearing impairment, the Roman numeral value is determined using both Table VI and VIa. 38 C.F.R. § 4.86. This method is used if the Veteran's puretone threshold at each of the four specified frequencies is 55 decibels or more, or if the Veteran's puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id. The Veteran's hearing loss does not meet the criteria for an exceptional pattern of hearing impairment. The Veteran has consistently had level I hearing loss in his right ear and level II hearing loss in his left ear. Applying these values to Table VII, the Board must find that the Veteran's bilateral hearing loss warrants a noncompensable evaluation, and not more. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. There is no evidentiary basis upon which to assign a compensable rating and since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating. Hart, 21 Vet. App. at 505. The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's hearing loss are contemplated by the criteria set forth in 38 C.F.R. § 4.85; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. Lastly, when entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the Veteran has not asserted, and the evidence does not show that the Veteran's hearing loss has caused unemployability. Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER Service connection for vertigo is denied. A compensable disability evaluation for bilateral sensorineural hearing loss is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs