Citation Nr: 1325274	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  10-10 890	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for depression, to include as secondary to service-connected seizure disorder.

2.  Entitlement to a compensable rating for bilateral hearing loss disability.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel




INTRODUCTION

The Veteran served on active duty from March 1985 to September 1990 and from January 1991 to July 2005.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that continued a noncompensable evaluation for the service-connected bilateral hearing loss.  This case is also before the Board on appeal of an August 2009 rating decision by the RO in Roanoke, Virginia that denied entitlement to service connection for clinical depression.  Jurisdiction of this case remains with the RO in Roanoke, Virginia.

In his March 2010 formal appeal, VA Form 9, the Veteran requested a central office hearing; however, he withdrew his request for a hearing in March 2013.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issue of entitlement to service connection for depression, to include as secondary to service-connected seizure disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

The Veteran's service-connected bilateral hearing loss has been manifested by Level VII in the right ear and Level I in the left ear throughout the evaluation period.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss disability are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking a compensable rating for bilateral hearing loss.  The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence.

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects the Veteran was provided complete VCAA notice in a letter mailed in April 2006.  

The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim.  In this regard, the Board notes that service treatment records and pertinent post-service medical records have been associated with the claims folder.  The Veteran was also afforded appropriate VA examinations.

Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim.  The Board also is unaware of any such outstanding evidence.  Therefore, the Board is satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation.  

Accordingly, the Board will address the merits of the claim.

Legal Criteria

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012).

Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85.

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 audiometric test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).

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 based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(b).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average.  Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c).

"Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four.  This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa.  38 C.F.R. § 4.85(d).

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and the column intersect.  38 C.F.R. § 4.85(e).

Provisions for evaluating exceptional patterns of hearing impairment are as follows.

(a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.

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

In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected bilateral hearing loss disability on appeal.  However, the Board is of the opinion this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability.

The Veteran filed the instant claim for an increased rating for his bilateral hearing loss in November 2008.  In response to this claim, the Veteran was afforded a VA audiological evaluation in March 2009 in which he reported more difficulty hearing sounds in his right ear than in his left ear; conversation was especially difficult.  The VA examiner noted that the disability's impact on occupational activities was hearing difficulty.  The Veteran's puretone thresholds were as follows:


HERTZ

500
1000
2000
3000
4000
AVG.
RIGHT
N/A
60
65
65
65
64
LEFT
N/A
10
15
30
30
21

Speech recognition was 56 percent in the right ear and 100 percent in the left ear.

Applying the values above to Table VIa results in a Level I Roman numeral designation for the left ear and a Level V for the right ear.  Application of these Level designations to Table VII results in a noncompensable rating.  The readings reported in this evaluation do meet the requirements for evaluation as an exceptional pattern of impairment.

The Veteran submitted a statement in September 2009 that his hearing loss affected his speech, concentration, sleep, and sound.

The Veteran was afforded a VA audiological evaluation in September 2012 that showed that his puretone thresholds were as follows:


HERTZ

500
1000
2000
3000
4000
AVG.
RIGHT
N/A
70
75
70
70
71
LEFT
N/A
10
35
45
45
34

Speech recognition was 60 percent in the right ear and 100 percent in the left ear.

Applying the values above to Table VI results in a Level VII Roman numeral designation for the right ear and a Level I designation for the left ear.  Application of these Level designations to Table VII results in a noncompensable rating.  The readings reported in this evaluation do meet the requirements for evaluation as an exceptional pattern of impairment.

The Board notes that the United States Court of Appeals for Veterans Claims (Court) has 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." Martinak v. Nicholson, 21 Vet. App. 447, 455   (2007). 

The Veteran's representative submitted a brief in May 2013 in which he requested a remand to consider increased compensation due to functional impairment.

The Board notes that the September 2012 VA examination report has a section titled "Functional Impact of Hearing Loss." The Veteran reported that the only such impact was that he could not hear when someone talked to him from his right side. Therefore, the Board finds that the VA examination report is in substantial compliance with the guidelines of Martinak and remand is not warranted.

VA must also consider all favorable lay evidence of record.  38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence offered by the Veteran and his representative in the form of correspondence to VA. 

A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, the rating schedule for hearing loss is a reasonable exercise of the Secretary's rulemaking authority.  Martinak v. Nicholson, 21 Vet. App. 447.  Whereas the Veteran's hearing loss has not been shown by medical or lay evidence to be worse than that measured during audiological evaluation, the lay evidence does not support a claim for rating higher than currently assigned.

Consideration has been given to assigning a staged rating; however, at no distinct period under review does the disability warrant a higher schedular rating.  See Hart, 21 Vet. App. 505.

The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a).  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for 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 extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  In this case, the record reflects that the manifestations of the disability are specifically contemplated by the schedular criteria.  Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In sum, based on the evidence and analysis above, the Board finds the criteria for a compensable rating for the service-connected bilateral hearing loss are not met. Accordingly, the claim must be denied.  Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply.


ORDER

Entitlement to a compensable rating for bilateral hearing loss disability is denied.


REMAND

The Veteran asserts that he is entitled to service connection for depression, to include as secondary to his service-connected seizure disorder and as secondary to the medication taken for the seizure disorder.  The Veteran also stated in his formal appeal, VA Form 9, that his high levels of stress led to depression during active duty service, as medically documented by undetermined seizure episodes and symptoms, loss of memory, and severe side effects caused by experimenting with different medication.  The Veteran also stated in September 2009 that his seizure disorder caused high levels of stress, memory loss, behavioral changes, and weight gain/loss.

Initially, the Board notes that the most recent VA treatment records in the claims file are from 2008.  To the extent that contemporary records relate to treatment or evaluation for the Veteran's depressive disorder, they may contain evidence supportive of the Veteran's claim.  To date, no attempt has been made to obtain additional records from the VA medical center; therefore, records should be obtained on remand.

The Veteran was afforded a VA examination in July 2009 in which the examiner diagnosed depressive disorder, not otherwise specified, and opined that the Veteran was not severely depressed at that time; that he was not taking any medications for seizures and had not for many years.  The examiner stated that the seizure disorder itself did appear to have a mild effect on his mood, but that it did not appear that the Veteran's current depression was secondary to the medications that he took for the service-connected seizure disorder.

The Veteran was also afforded a VA examination in September 2012 in which the VA examiner opined that the Veteran's mild depressed mood was not due to his service-connected seizure condition, stating that he had been off his seizure medication for about four years; therefore, there would be no medication side effects.  The examiner also stated that research did not reveal any such side effects such as depression lasting seven years after seizure medication cessation.  The examiner furthered that it was unclear just how often the Veteran actually had seizures as primary care notes did not seem to mention any ongoing seizure issues; that the Veteran last called the rescue squad for his seizures in 2002.  The examiner stated that seizures did not seem to significantly interfere with the Veteran's day to day life and therefore would not likely be the cause of any depression; that life stresses mildy affect his mood recently.

Moreover, the Board finds that the July 2009 and September 2012 VA opinions are inadequate for adjudication purposes.  First, as outlined above, the Veteran has asserted that high levels of stress led to depression during active duty service.  Therefore, an addendum opinion should be obtained addressing the etiology of the Veteran's depression, on a direct basis, as related to active service.  Second, the July 2009 VA examiner stated that "the seizure disorder itself did appear to have a mild effect on his mood", but did not address the appropriate legal standard for service connection, instead focusing on the medication the Veteran took in the past for his seizure disorder instead of the disability.  Finally, the September 2012 examiner stated that primary care notes did not seem to mention any ongoing seizure issues; however as mentioned above, the most recent VA treatment records in the claims file or Virtual VA are from 2008.  Moreover, the September 2012 VA examiner did not properly address the legal standard for the Veteran's secondary service connection claim, and the focus of the rationale for the negative etiological opinion was on the seizure medication and not the disability.  See Barr v. Nicholson, 21 Vet. App. 303, 312   (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.)

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran a letter asking him to identify any additional medical treatment he has received for his seizure disorder and/or claimed psychiatric disorder.  Thereafter, take appropriate steps to secure any medical treatment records so identified that are not already of record, to include all relevant updated VA treatment reports from 2008 to the present.  Efforts to obtain these records should be memorialized in the Veteran's VA claims folder, and all records obtained should be associated with the claims folder.  Notice of inability to obtain any identified records should comply with 38 C.F.R. § 3.159(e) (2012).   Specifically, the Veteran should be asked to provide private treatment records related to his psychiatric treatment or information on how to obtain these records. 

2.  The claims folders should then be provided to the VA examiner who conducted the September 2012 VA examination.  The examiner should be requested to review the claims folders and provide an addendum in which he responds in the affirmative or the negative to the following question:  Is it is at least as likely as not (a 50 percent or greater probability) that the Veteran has now, or has had at any time since November 2008, an acquired psychiatric disorder, including a depressive disorder/depression that originated during active service or is otherwise etiologically related to his active service?  

The examiner should also express an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran 's has has now, or has had at any time since November 2008, an acquired psychiatric disorder, including a depressive disorder/depression, that is proximately due to, or aggravated by, the service-connected seizure disorder.  The term "aggravation" means a permanent worsening beyond the natural progression of the disability.  
The examiner should set forth a complete rationale for all opinions expressed and conclusions reached.

If the September 2012 examiner is unavailable, the claims folders should be reviewed by another physician with appropriate expertise who should be requested to provide the required opinion with supporting rationale.  Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion.

3.  The RO or the AMC should also undertake any other development it determines to be warranted. 

4.  Then, the RO or the AMC should readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims files are returned to the Board for further appellate action. 

By this remand the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs