Citation Nr: 1327308 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-19 446 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hemorrhoids, to include as secondary to the service-connected irritable bowel syndrome. 2. Entitlement to a compensable disability rating for bilateral hearing loss prior to May 10, 2012. 3. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss on and after May 10, 2012. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from June 1996 to May 1998. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. On August 15, 2011, the Veteran appeared at the Nashville RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, D.C. A transcript of that hearing has been associated with the claims folder. In August 2011, the Board remanded the case for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in March 2013. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. As a final introductory matter, the Board observes that, in addition to reviewing the Veteran's paper claims folder, it has surveyed the contents of his Virtual VA file. Nevertheless, the Board concludes that there is no additional evidence in the Virtual VA file that is material to the Veteran's appeal and, thus, no need to address the specific contents of that file at this time. The issue of entitlement to service connection for hemorrhoids is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to May 10, 2012, audiometric testing showed an average 24-decibel loss, with a speech recognition score of 86 percent, in the right ear (Level II); and, for the left ear, an average 54-decibel loss with a speech recognition score of 84 percent (Level II). 2. Since May 10, 2012, audiometric testing showed an average 22.5-decibel loss, with a speech recognition score of 80 percent, in the right ear (Level III); and, for the left ear, an average 55 decibel loss with a speech recognition score of 78 percent (Level IV). CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss, prior to May 10, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012). 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss from May 10, 2012 are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record 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). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in January 2009 from the RO to the Veteran which was issued prior to the RO decision in April 2009. An additional letter was issued in February 2012. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Significantly, the Veteran was afforded examinations in February 2009 and May 2012. The reports reflect that the examiners solicited symptoms from the Veteran, examined the Veteran, and provided findings necessary to apply the rating criteria. Therefore, these examinations are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). II. Factual background. By a rating action in June 2002, the RO granted service connection for left ear hearing loss, evaluated as 0 percent disabling, effective January 29, 2002. The Veteran's claim for an increased rating for hearing loss (VA Form 119) was received in December 2008. Submitted in support of the claim were VA progress notes dated from October 2008 to January 2009. During a VA audiological consultation, dated in December 2008, it was noted that audiometric testing demonstrated for the right ear borderline normal to mild sensorineural hearing loss from 250 to 6000 Hertz, sloping to a moderate loss at 8000 Hertz. For the left ear, he had a mild sensorineural hearing loss from 250 to 1000 Hertz levels, sloping to a moderately severe sensorineural hearing loss from 3000 to 8000 Hertz levels. A significant asymmetry (15-45 db, poorer in the left) was noted between the two ears at 500 & 2000 to 6000 Hertz levels. Word recognition ability was good bilaterally (88 percent in both ears). It was noted that these results showed no significant change in hearing or word recognition from the 2002 examination. The Veteran was afforded a VA audiological evaluation in February 2009. At that time, the Veteran reported a previous history of military noise exposure due to working on the flight line with aircraft noise daily. In addition, the Veteran reported working in a shop with loud compressors, wearing hearing protection devices consistently. He denied any occupational or recreational noise exposure. The Veteran did report difficulty communicating in the presence of background noise, women's voices, and hearing emergency vehicles sirens in the vehicle. He also reported that hearing loss causes problems when he is trying to communicate with family members and co-workers. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 25 20 20 20 24 LEFT 35 50 65 65 54 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 84 percent in the left ear. The pertinent diagnoses were mild sensorineural hearing loss at 250 Hertz, with normal hearing from 500 to 3000 Hertz levels, and a mild sloping to moderately severe sensorineural hearing loss from 4000 to 8000 Hertz levels; the left ear had a mild sloping to moderately severe sensorineural hearing loss. Received in December 2009 were VA progress notes dated from October 2008 to December 2009. These records do not reflect any complaints or treatment for bilateral hearing loss. Subsequently received in January 2010 were VA progress notes dated from December 2009 to January 2010. These records do not reflect any complaints or treatment for bilateral hearing loss. Received in April 2010 were VA progress notes dated from March 2010 to April 2010. Received in June 2010 were VA progress notes dated from August 2002 to May 2010. These records do not reflect any complaints or treatment for bilateral hearing loss. At his personal hearing in August 2011, He stated that his hearing had worsened since he was last examined by VA in February 2009 and that the VA-issued hearing aid was not working (see Board hearing transcript at page 3). The Veteran was afforded another VA audiological evaluation in May 2012. At that time, he reported the onset of hearing loss in both ears while he was in the military when he was chronically exposed to high levels of noise as the result of military duty. The Veteran sated that the hearing loss is now progressive and nonfluctuant; he denied other ear-related symptoms except for tinnitus. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 30 15 20 25 22.5 LEFT 30 55 70 65 55 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 78 percent in the left ear. The examiner noted that pure tone audiometrics and speech audiometrics today demonstrate a bilateral sensorineural hearing loss. In the right ear, the hearing loss was of a mild degree in the mid frequencies; in the left ear, the hearing loss was of a mild to moderate degree in the low and mid frequencies, and then becomes severe in the high frequencies. The pertinent diagnosis was bilateral sensorineural hearing loss. The Veteran stated that he cannot use the phone with his left ear because he cannot understand speech over the phone in that ear; he also indicated that he had difficulty understanding speech when more than one person is speaking. III. Legal Analysis-Increased rating. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. However, where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1Vet. App. 49, 55 (1990). The present appeal involves the Veteran's claim that the severity of his hearing loss warrants a higher disability rating. The Veteran's hearing loss has been rated under the provisions of Diagnostic Code 6100. In evaluating hearing impairment, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are conducted. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz , and 70 decibels or more at 2000 Hertz , Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The evidence of record herein indicates that the Veteran's bilateral hearing loss pattern does not fit the requirements of an unusual pattern of hearing impairment. A. Entitlement prior to May 10, 2012. The Board has reviewed the audiometry results from a VA compensation examination during the period prior to May 10, 2012. After a review of the evidence, the Board finds that the criteria for a compensable rating for the Veteran's service-connected bilateral hearing loss are not met prior to May 10, 2012. Significantly, a VA audiological evaluation in February 2009 shows a right ear puretone decibel loss of 24 with speech recognition of 86 percent. This corresponds to a numeric designation of Level II hearing in the right ear. 38 C.F.R. § 4.87, Table VI (2012). He had a left ear average puretone decibel loss of 54 with speech recognition of 84 percent. These findings are consistent with Level II hearing in the left ear. These combined numeric designations result in a rating of 0 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII (2012). A review of all audiometric examinations of record would support a finding of a noncompensable evaluation. Additionally, because the Veteran's pure tone thresholds at each of the relevant frequencies on the evaluation have not all been 55 decibels or more, or less than 30 decibels at 1000 Hertz and 70 decibels or more at 2000 Hertz , he does not meet the criteria for a higher disability evaluation under 38 C.F.R. § 4.86(a) or § 4.86(b). In sum, a review of all audiometric examinations of record prior to May 10, 2012, reveals no basis for award of a compensable rating. B. Entitlement after May 10, 2012. The Veteran has claimed a higher evaluation for his bilateral hearing loss from May 10, 2012. However, the evidence of record has failed to show an increase in the Veteran's hearing loss, such as would warrant a disability rating in excess of the 10 percent currently assigned. The Veteran underwent his most recent VA audiological evaluation in May 2012. The average puretone threshold was 22.5 decibels in the right ear and 55 decibels in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in right ear, and 78 percent in the left ear. Applying the results of this examination to Table VI yields a Roman numeral value of Level III for the right ear and Level IV for the left ear. Applying these values to Table VII, the Board finds that the Veteran's hearing loss is evaluated as 10 percent disabling. No other medical records contain the puretone threshold average and speech discrimination percentage scores needed to determine the level of hearing loss according to VA regulation after May 10, 2012. Thus, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 10 percent for bilateral hearing loss since May 10, 2012. 38 C.F.R. §§ 4.3, 4.85, Diagnostic Code 6100. The Board in no way discounts the difficulties that the Veteran experiences as a result of his hearing loss. However, as was explained above, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. As a final matter, the Board has considered whether the Veteran's bilateral hearing loss disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b) (1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's bilateral hearing loss. 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The hearing loss results in a significant occupational impairment, since the Veteran is unable to use the phone in his left ear, has difficulty understanding others and has been assigned different duties in the office. See May 2012 VA audiology report. However, the Veteran has been accommodated at work, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher evaluations for greater symptomatology. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER A compensable rating for bilateral hearing loss prior to May 10, 2012, is denied. A rating for bilateral hearing loss in excess of 10 percent since May 10, 2012, is denied. REMAND The February 2012 Board remand requested that the Veteran be afforded a VA examination of his claimed hemorrhoids. The examiner was to express an opinion as to whether it was as likely as not that the Veteran's hemorrhoids had their onset in service, were related to disease or injury incurred in service, or whether it was as likely as not they were due to or aggravated by the Veteran's service connected irritable bowel syndrome. The Veteran was afforded a VA examination in March 2012. At that time, the examiner opined that the Veteran's irritable bowel syndrome was incurred in or caused by service. He also added that clinical manifestations of constipation occurred in service, and hemorrhoids are related to constipation. As such, this opinion suggested that the hemorrhoids were associated with service. However, in February 2013, the Veteran was afforded a VA examination for evaluation of rectum and anus conditions. At that time, the examiner checked the yes box which asked whether the Veteran now has a condition of the rectum; and, he checked the box indicating that the current condition is internal or external hemorrhoids. Following the examination, the examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the rationale for his opinion was that there were no records in the claims file only statement from the Veteran, and the current examination showed only skin tags. The opinions are somewhat contradictory and do not adequately address the matter of existence and etiology of any hemorrhoid disability. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO via the AMC in Washington, D.C., for the following actions: 1. The AOJ should obtain and associate any VA treatment reports reflecting treatment or examination for his hemorrhoids dated from February 2013 to present. 2. Afford the Veteran a VA examination to determine the nature and etiology of any hemorrhoid disability . The claims file must be made available to the examiner for review. Any evaluations, studies, and tests deemed necessary by the examiner should be conducted. If hemorrhoids are found or if they have been present during the pendency of the claim (since January 2002), the examiner should provide an opinion as to whether it is at least as likely as not that the hemorrhoid disability identified had its clinical onset in service or is otherwise related to service or is due to or aggravated by the service-connected irritable bowel syndrome. If aggravated, specify the baseline of hemorrhoid disability prior to aggravation, and the permanent, measurable increase in hemorrhoid disability resulting from the aggravation. All opinions expressed should be accompanied by a supporting rationale that also addresses and considers the opinions provided by the March 2012 and February 2013 VA examiners. 3. Thereafter, the AOJ should readjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided an SSOC, which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decision reached. Thereafter, the Veteran and his representative should be given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs