Citation Nr: 1327749	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO.  04-18 031	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Pension Management Center at the Regional Office (RO) in St. Paul, Minnesota


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim for service connection for squamous cell carcinoma of the right external auditory canal, for substitution or accrued benefits purposes. 

2.  Entitlement to service connection for right ear hearing loss, for substitution or accrued benefits purposes.

3.  Entitlement to an initial compensable disability rating for service-connected left ear hearing loss, for substitution or accrued benefits purposes. 


REPRESENTATION

Appellant represented by:	Stephen Vaughn, Agent


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from December 1966 to November 1968, including service in Vietnam.  He died in May 2009.  The RO has determined that the Veteran's surviving spouse was entitled to file an accrued benefits claim and to substitute her accrued claim for the Veteran's appeal pending before the Board of Veterans' Appeals (Board) at the time of his death.  Accordingly, she is the appellant.   

This matter comes to the Board on appeal from a July 2005 rating decision of the RO in Los Angeles, California.  The claims are currently being handled by the St. Paul, Minnesota RO and Pension Management Center.  

In its July 2005 rating decision, in pertinent part, the RO granted service connection and a noncompensable rating for left ear hearing loss, denied service connection for right ear hearing loss, and found that new and material evidence had not been submitted to reopen a previously denied claim for service connection for squamous cell carcinoma of the external auditory canal on the right side, postoperative subtotal temporal bone resection, mandibular condylectomy, right neck dissection and right superficial parotidectomy.  

In an October 2006 rating decision, the RO granted service connection and a 50 percent rating for PTSD, effective November 19, 2004.  The Veteran submitted a timely notice of disagreement for a higher initial rating for PTSD in November 2006.  In an October 2007 rating decision, the RO granted a higher 70 percent rating for PTSD, effective November 19, 2004.

After the Veteran's death, in a June 2009 statement that was received by VA in July 2009, the appellant requested that she be substituted for the Veteran as his surviving spouse.  See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (amending the law to allow substitution in cases involving claimants who die on or after October 10, 2008) (codified at 38 U.S.C.A. § 5121A (West Supp. 2012)).  Such request must be filed not later than one year after the date of the veteran's death.  Id.  As provided in the law, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) . . . ."  Id.  As noted, the Veteran's surviving spouse has been substituted as the appellant in this appeal.  Therefore, the Board may proceed to adjudicate the claims for accrued benefits purposes based on substitution of the appellant.  Id.  The appellant retains the Veteran's docket number before the Board.

During the pendency of this appeal, the Veteran filed requests for a hearing at his local VA office before a member or members of the Board in April 2004 and October 2006 substantive appeals.  As of the date of the Veteran's death, no hearing before a member of the Board had been scheduled or held.  In a May 2012 letter, the appellant was informed of these prior requests for a hearing and was asked whether she would like to attend a hearing before the Board.  No response to this inquiry was received.  Therefore the Board finds that the appellant has not elected to attend a hearing before the Board.  See 38 C.F.R. § 20.704 (2012). 

The Board remanded this case to the RO in August 2012 for additional development.  In its August 2012 remand, the Board noted that the Veteran submitted a timely notice of disagreement with respect to his claim for a higher rating for PTSD in November 2006 but the RO had not issued a statement of the case (SOC) on this issue, and that therefore the appeal on this claim was still pending at the time of his death in May 2009 and when the appellant filed her claim for accrued benefits in July 2009.  The Board remanded this claim for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  The RO promulgated a SOC as to this issue in January 2013, and the appellant did not respond.  As the appellant did not submit a timely substantive appeal (VA form 9) as to this issue, she did not perfect the appeal for a higher rating for PTSD.  See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2012).  Moreover, the RO did not take any action to indicate that the filing of a substantive appeal had been waived.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  Hence, this issue is not in appellate status, and will not be addressed by the Board.  

There are other issues that have been resolved and are not in appellate status.  In a January 2013 rating decision, while this case was on remand, the RO granted multiple claims for accrued benefits purposes:  service connection and a 100 percent rating for cirrhosis, service connection and a 100 percent rating for hepatocellular carcinoma, service connection and a 10 percent rating for hepatitis C, special monthly compensation based on being housebound, and basic eligibility for dependents' educational assistance.  The RO also granted the appellant's claim for entitlement to service connection for the cause of the Veteran's death (one basis for Dependency and Indemnity Compensation (DIC) benefits).  The case was subsequently returned to the Board.


FINDINGS OF FACT

1.  The RO previously denied service connection for squamous cell carcinoma of the right external auditory canal in a June 1997 rating decision and properly notified the Veteran, who did not appeal that decision. 

2.  The evidence added to the record since that June 1997 decision is cumulative or duplicative of evidence already of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for squamous cell carcinoma of the right external auditory canal, and does not raise a reasonable possibility of substantiating this claim.

3.  The preponderance of the competent and credible evidence indicates that the Veteran's right ear hearing loss began many years after his active military service and was not caused by any incident of service. 

4.  Service-connected left ear hearing loss is manifested by no more than Level I hearing impairment.


CONCLUSIONS OF LAW

1.  The June 1997 rating decision that denied service connection for squamous cell carcinoma of the right external auditory canal is final and binding based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160, 20.1103 (2012). 

2.  New and material evidence has not been submitted, and the claim for service connection for squamous cell carcinoma of the right external auditory canal is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  Right ear hearing loss was not incurred in or aggravated by service, nor may it be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 

4.  The criteria for a compensable evaluation for left ear hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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 obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). 

These 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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486. 

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VA must both notify a claimant of the evidence and information that is necessary to reopen a previously denied claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought, i.e., service connection. 

Here, a February 2005 letter was sent to the Veteran regarding his initial service connection claims, prior to the July 2005 rating decision on appeal.  This letter provided notice regarding what information and evidence is needed to substantiate the claims for service connection, to include the need to submit new and material evidence to reopen the claim for service connection for squamous cell carcinoma of the right external auditory canal, and also advised the Veteran of the basis for the prior denial of that claim.  See Kent, supra.  The letter also advised as to what information and evidence must be submitted by the Veteran, and the types of evidence that will be obtained by VA.  A March 2006 letter provided the Veteran with notice of the information and evidence needed to establish a disability rating and an effective date for his claimed disabilities.  Additional notice was provided in letters dated in October 2009 and June 2011.

With respect to the claim for a higher initial rating for left ear hearing loss, in cases such as this, where service connection has been granted and initial disability ratings and effective dates have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, supra; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements.   Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). Neither the appellant nor her representative has advanced any such arguments. The provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. And this has been done; the appellant has received both an SOC and supplemental statements of the case, most recently in January 2013, discussing the downstream disability rating element of this claim, citing the applicable statutes and regulations, and discussing the reasons and bases for assigning the initial ratings for the service-connected left ear hearing loss.  Moreover, additional notice as to this claim was sent in a May 2008 letter.

The Veteran died in May 2009.  The appellant filed claims for accrued benefits in July 2009 and in November 2010.  By a June 2011 letter, she was informed that she was the substitute claimant for the Veteran's claims on appeal, including whether new and material evidence had been received to reopen a previously denied claim for service connection for squamous cell carcinoma of the external auditory canal on the right side, service connection for right ear hearing loss and an increased initial rating for left ear hearing loss.   

The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent January 2013 supplemental statement of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). 

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the appellant's claim, which is obtainable, and therefore appellate review may proceed without prejudicing her.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); see also Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran, while still alive, submitted records and written statements in support of his claim.  A review of the claims file shows that the RO has obtained pertinent VA and private treatment records, and records from the Social Security Administration (SSA), and arranged for VA compensation examinations.  The July 2005 VA examiner provided a medical opinion regarding the etiology of the claimed right ear hearing loss after a clinical examination and a review of the Veteran's reported history, and also evaluated the severity of the service-connected left ear hearing loss.  The Board finds that this VA examination is adequate as it provides the information needed to properly adjudicate the claim for service connection and to rate his service-connected left ear hearing loss.  Neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. 

The Board further finds that the RO has substantially complied with its August 2012 remand orders.  In this regard, the Board directed that the RO should obtain the Veteran's SSA records, and this was done.  The RO also completed remand actions regarding issues that are no longer in appellate status.  Therefore, the Board finds that no further development is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board concludes that all the identified and available records and medical evidence have been obtained in order to make a determination as to this claim.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  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 has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Governing Law and Regulations Regarding Service Connection 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107  (West 2002); 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. 

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Malignant tumors and other organic diseases of the nervous system like sensorineural hearing loss are considered chronic, per se, and therefore will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease.  38 C.F.R. § 3.307(a)(6)(ii).  Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), it will be presumed that he was exposed to herbicides if he served in Vietnam between January 9, 1962 and May 7, 1975 (i.e., during the Vietnam era), unless there is affirmative evidence establishing he was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 

The diseases presumptively associated with Agent Orange exposure include chloracne or other acneform disease consistent with chloracne, Type II Diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma.  38 C.F.R. § 3.309(e) (2012).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, 708 F3d. at 1336.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id. at 1339.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id. at 1338-40.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Id. at 1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).  A particular type of hearing loss, namely, sensorineural hearing loss, as an organic disease of the nervous system, is however recognized as chronic under § 3.309(a) and therefore within the purview of the continuity of symptomatology pleading exception afforded by § 3.303(b).  The Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note: "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. § 3.309(a)."  M21-1MR III.iv.4.B.12.a.  Other types of hearing loss are not entitled to this same consideration, however.

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (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 Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313   (Fed. Cir. 2009).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Any issue material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  The claim is granted if the evidence is favorable to the claim or in relative equipoise, meaning about evenly balanced for and against his claim.  If the preponderance of the evidence, instead, is against the claim, then it must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001).


New and Material Evidence 

In its July 2005 rating decision, the RO determined that new and material evidence had not been received to reopen the previously denied claim for service connection for squamous cell carcinoma of the right external auditory canal.  In a January 2013 supplemental statement of the case, the RO found that new and material evidence had been received, and reopened the claim.  Regardless of how the RO ruled on this question, the Board must determine whether there is new and material evidence to reopen this claim, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108; see also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.   

The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Id.  In determining whether evidence is "new and material," the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium).  See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating that Justus does not require the VA Secretary to consider the patently incredible to be credible). 

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

The Veteran submitted his original claim for service connection for squamous cell carcinoma of the right external auditory canal in March 1997, contending that his squamous cell carcinoma of the right external auditory canal was due to Agent Orange exposure.  The RO denied entitlement to service connection for squamous cell carcinoma of the right external auditory canal in a June 1997 rating decision, finding that although the Veteran served in Vietnam, squamous cell carcinoma of the right external auditory canal was not a recognized presumptive Agent Orange disability, there was no evidence linking the current squamous cell carcinoma of the right external auditory canal with service, and that presumptive service connection was also not warranted as it was not shown within the first post-service year.  The RO properly notified the Veteran of this denial. The Veteran did not file a notice of disagreement with the June 1997 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year after the rating decision.  See 38 C.F.R. § 3.156 (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the June 1997 rating decision became final based on the evidence then of record.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103, 20.1105 (2012). 

Evidence of record at the time of the prior June 1997 final rating decision 
included the Veteran's DD Form 214 and service personnel records reflecting that he served in the Republic of Vietnam during the Vietnam era.  The record also included service treatment records which were negative for squamous cell carcinoma of the right external auditory canal and negative for cancer, and post-service private medical records dated in 1997 reflecting treatment for extensive squamous cell carcinoma of the right external auditory canal, with spread into the temporomandibular joint.  These records show that the Veteran underwent surgery in January 1997, specifically, right temporal bone, subtotal temporal bone resection, resection of condyle of mandible, and glenoid fossa, and middle fossa plate with dura.  His right ear canal was surgically closed.  A January 1997 pathology report showed squamous cell carcinoma with metastasis.  

In November 2004, the Veteran filed an application to reopen his claim for service connection for a squamous cell carcinoma of the right external auditory canal.  He asserted that the cancer and subsequent surgery, including resection of the temporal bone on the right side of his face, was due to Agent Orange and chemical exposure.  He reiterated this assertion in subsequent statements.

Additional evidence received since the final June 1997 decision includes extensive private and VA medical records dated from 1974 to 2009 pertaining to treatment for a variety of conditions including liver disease, gastrointestinal problems, diabetes mellitus, and a psychiatric disorder.  Although this evidence is new, it is not material, as it does not relate to squamous cell carcinoma of the right external auditory canal, and therefore does not relate to an unestablished fact necessary to substantiate the claim.

Similarly, additional evidence of record includes buddy statements relating to the Veteran's service in Vietnam that were submitted in support of the Veteran's PTSD claim, and statements by the Veteran regarding other claims for VA benefits.  Although this evidence is new, it is not material, as it does not relate to an unestablished fact necessary to substantiate this claim.

Additional evidence also includes partially duplicative and partially cumulative private and VA medical records demonstrating that the Veteran had treatment and surgery for squamous cell carcinoma of the right external auditory canal in 1996 and 1997.  The duplicative records are not new, as they were of record at the time of the prior final denial in June 1997.  The other records, including a summary of an Agent Orange registry examination in September 2004 and a July 2005 VA compensation examination, are cumulative, not new, as they merely note that he had squamous cell carcinoma of the right external auditory canal with surgical removal in 1996 and 1997, which was already shown at the time of the prior decision.  In April 1998, his treating physician said he was doing very well since his ear surgery with no evidence of clinical disease.  By a letter dated in September 2003, Dr. O. stated that he saw the Veteran in November 1996 for a mass of the right ear, and he was diagnosed with squamous cell carcinoma of the right external auditory canal in December 1996.  He did not provide any opinion as to the etiology of this condition.  In sum, as the medical records added to the file since the last final decision merely show that he had squamous cell carcinoma of the right external auditory canal in 1996 and 1997, and do not suggest that this condition was related to service or to herbicide exposure in service, they do not relate to an unestablished fact necessary to substantiate the claim, and are not material.

Additional evidence submitted since the prior final denial in July 1997 also includes the Veteran's contentions.  In alleging that his prior squamous cell carcinoma of the right external auditory canal was caused by Agent Orange/ chemical exposure in service, the Veteran is merely reiterating the very same argument he made prior to the denial of his claim in July 1997.  So this is not new evidence.  Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence).  

Also, to be material, the evidence must relate to a fact not previously established that is necessary to substantiate the claim, and when viewed in the context of the record as a whole, must raise a reasonable possibility of substantiating the claim. The basis for the RO's prior final and binding denial of this claim was that squamous cell carcinoma of the right external auditory canal is not a condition subject to presumptive service connection under the regulation governing presumptive herbicide conditions (38 C.F.R. § 3.309(e)), that service treatment records were negative for this condition, and that the condition was not shown within the first post-service year and had not been linked to service.

These newly obtained medical records, to the extent they concern squamous cell carcinoma of the right external auditory canal, have referred to the previous diagnosis and treatment of this condition, but have not also addressed etiology of this disorder in terms of any possible relationship with the Veteran's military service.

Ultimately, the additional evidence received since the prior final and binding denial of this claim only relates to diagnosis or treatment for squamous cell carcinoma of the right external auditory canal, and as such does not relate to an unestablished fact necessary to substantiate this claim.  A then-current squamous cell carcinoma of the right external auditory canal was established in 1997.  As such, in the absence of any additional evidence since relating to an unestablished fact necessary to substantiate this claim, including regarding the additional requirement of etiology, this additional evidence does not raise a reasonable possibility of substantiating this claim.  It therefore is not new and material evidence.  38 C.F.R. § 3.156(a).  Furthermore, as the appellant has not fulfilled her threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

Service Connection for Right Ear Hearing Loss

The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley  v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  Before service connection may be granted for hearing loss, it must be of a particular level of severity.  For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz  (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies 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.

For service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation or even during the one-year presumptive period after, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley, 5 Vet. App. at 159. 

Here, there is no disputing that during the appeal, the Veteran had right ear hearing loss and, indeed, sufficient hearing loss according to 38 C.F.R. § 3.385 to be considered a ratable disability by VA standards.  See report of July 2005 VA examination; private medical records dated from 1996 to 2003, and VA medical records and examination reports dated since 2004.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed and that, without this proof of current disability, there can be no valid claim); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability).  

Resolution of his appeal turns on whether the right ear hearing loss is attributable to his military service.  See Watson v. Brown, 4 Vet. App. 309, 314   (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  See also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico  v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

The Veteran's DD Form 214 reflects that his primary military occupational specialty was light vehicle driver, and his service personnel records reflect that he served in the Republic of Vietnam.  The RO conceded that the Veteran was exposed to noise during his service, and has already established service connection for left ear hearing loss.

STRs are entirely negative for complaints, treatment or diagnosis of right ear hearing loss, including on entrance examination, and reflect that on separation medical examination in November 1968, the Veteran's ears and ear drums were clinically normal, and audiometric testing revealed right ear decibel thresholds of 20, 5, 0, and 10, and left ear decibel thresholds of 10, 5, 0, and 15 at the respective frequencies of 500, 1000, 2000, and 4,000 hertz.  In a report of medical history completed at separation, the Veteran denied a history of hearing loss.  

Post-service VA medical records dated in 1974 reflect treatment for an explosive personality and excessive drinking.  These records are negative for hearing loss.

Records on file reflect that the Veteran worked as a school bus driver for many years after service.

A September 1994 private history and physical by S.P., MD, reflects that the Veteran denied any problem with his hearing.

As noted above, private medical records dated in 1996 and 1997 reflect surgical treatment for squamous cell carcinoma of the right external auditory canal.  

A December 1996 private treatment note reflects that the Veteran complained of right ear drainage and hearing loss, progressive since childhood, with recent persistent pain, and essentially no hearing.  The diagnostic impression was chronic mastoiditis, and a computed tomography scan was planned.  A biopsy showed squamous cell carcinoma of the right external auditory canal.  A December 1996 treatment note reflects that the Veteran reported that he always worked outside, had a history of several sunburns, a history of frequent swimmer's ear, and a history of smoking, with none since July 1996; the examiner diagnosed squamous cell carcinoma of the right external auditory canal.  Surgery was planned, and he was advised that a risk of the surgery was conductive hearing loss.  A January 1997 discharge note reflects that he had noticed a three month history of right ear pain and drainage, right jaw pain for two months, and decreased hearing in the right ear for one month.  He underwent surgery in January 1997, specifically, right temporal bone, subtotal temporal bone resection, resection of condyle of mandible, and glenoid fossa, and middle fossa plate with dura.  His right ear canal was surgically closed.  

In a March 1997 claim (for service connection for squamous cell carcinoma of the right external auditory canal), and a written statement, the Veteran reported that he had been treated for squamous cell carcinoma of the right external auditory canal, and that his right ear had been sealed off and the hearing loss was "totally extreme with the ear drum removal."

Private audiological examinations dated in December 1996 and June 1997 reflect decreased hearing in the right ear.  A June 1998 private audiology examination reflects that the Veteran had a history of ear surgery for cancer in 1996 and his external auditory canal was closed, and also had a history of noise exposure and vertigo.  A right ear bone conduction hearing aid was recommended.  A June 1998 referral for an ENT evaluation reflects that the Veteran had mixed hearing loss in the right ear, and normal hearing acuity in the left ear.  An August 2003 private audiometry examination reflects that the Veteran had severe mixed hearing loss in the right ear with mild high frequency sensorineural hearing loss in the left ear.

A November 2004 VA emergency room note reflects that the Veteran presented with complaints of chest pain.  The examiner noted that the Veteran had a history of right temporal bone squamous cell carcinoma, status post resection of the inner ear/temporal bone and radiation therapy, with hearing loss secondary to the resection.  He also had a history of left tympanic membrane perforation.

VA outpatient ENT notes dated in September, November and December 2004, and February 2005 reflect that the Veteran's right ear canal was surgically closed since his prior surgery.  Audiometric testing in September 2004 showed that air conduction testing could not be performed in the right ear due to absence of an ear canal; bone conduction testing showed results within the normal range dropping to moderate hearing loss at 2000 to 4000 hertz.  Audiometric testing in September 2004 showed conductive hearing loss and sensorineural hearing loss in the left ear.  He was diagnosed with chronic otitis externa of the left ear in February 2005.  Subsequent VA medical records reflect that he wore a hearing aid behind his right ear.

A July 2005 VA compensation examination was performed by QTC Medical Services, and reflects that the Veteran complained of bilateral hearing loss and reported noise exposure during service in Vietnam including rocket and mortar fire.  He had right radical removal of a squamous cell carcinoma of the right ear, and a radical removal of the ear canal, middle ear, and adjacent structures including the right mandibular condyles and petrous bone.  He had a complete loss of hearing in the right ear.  He reportedly worked as a gardener after service.

On examination of the right ear, the canal was absent, a skin graft covered the ear canal, and there was a mastoidectomy scar.  The diagnoses were sensorineural hearing loss in the left ear, mixed hearing loss in the right ear, right extirpation of the ear canal, middle ear, right upper "manilla" and mastoidectomy.  The examiner opined that the Veteran's surgical removal of ear cancer resulted in severe deafness in the right ear, and noted the Veteran's report of noise exposure in service and a lack of noise exposure after service.  He stated that based on the above discussion, the Veteran's reported history and the current examination, it was his opinion that it was as least as likely as not that the Veteran's left ear hearing loss and tinnitus were the result of noise trauma in service, but the severe hearing loss in the right ear was the result of cancer surgery in 1997.

The evidence reflects that since his ear cancer surgery in 1997, the Veteran has been diagnosed with "mixed" hearing loss in the right ear, i.e., conductive hearing loss in combination with sensorineural hearing loss.  As noted above, sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a).  Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology.  See Walker, supra.

A review of the claims file reflects that although the Veteran contended that his right ear hearing loss was related to service, he has never reported continuous right ear hearing loss symptoms ever since service.  Rather, he consistently stated that he had right ear hearing loss due to his surgical ear drum removal to remove his squamous cell carcinoma of the right external auditory canal.  The Board notes that this disability is not a service-connected disability.  Moreover, the evidence of record, including his service treatment records and post-service treatment records, is negative for complaints, treatment or diagnosis of right ear hearing loss until his squamous cell carcinoma of the right external auditory canal in 1996.  Hearing loss was not shown on separation medical examination in 1968.  The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

Here, after reviewing all the relevant lay and medical evidence, the Board finds that the weight of this evidence (the most probative of it) indicates the Veteran has not experienced continuous right ear hearing loss symptoms since service.  In this regard, the Board notes that the Veteran denied hearing loss upon separation in 1968 and during treatment in 1994.  Finally, although the Veteran was exposed to noise during combat service in Vietnam, multiple medical providers, including the July 2005 VA examiner, have attributed the Veteran's right ear hearing loss to his squamous cell carcinoma of the right external auditory canal and its surgical removal in 1997, which is an intercurrent cause.

The Veteran contended that he had right ear hearing loss that was incurred in service.  The Veteran is only competent to describe symptoms of his disability; he is not competent to link his hearing loss to service, as this disease is not the type of condition that is readily amenable to lay diagnosis, much less probative comment regarding its etiology.  Rather, there necessarily has to be supporting medical evidence, which in this instance there is not.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). 

There is no competent and probative evidence linking the Veteran's right ear hearing loss with service.

The July 2005 medical report finding no nexus with service is of high probative value because the examiner is qualified to comment on the etiology of this claimed disorder, examined the Veteran and considered the Veteran's reported history of acoustic trauma during service.  The opinion is well reasoned, detailed, and consistent with the other evidence of record.  Prejean v. West, 13 Vet. App. 444 (2000).  The VA examiner sufficiently discussed the underlying medical rationale of the opinion, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Green v. Derwinski, 1 Vet. App. 121 (1991).

The Board therefore finds that the most probative evidence is against the claim for service connection for right ear hearing loss.  And since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in the appellant's favor, and her claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Higher Rating for Left Ear Hearing Loss

The appellant contends that the Veteran's left ear hearing loss was more disabling than currently evaluated.

This claim arises from his disagreement with the initial rating assigned following the granting of service connection.  Where, as here, the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule).  Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Unlike that in his left ear, the hearing loss in the Veteran's right ear is not service connected, although service connection has been granted for tinnitus associated with the hearing loss in his left ear.  Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994).  He has already been compensated for this.  The symptoms related to his tinnitus may not be considered in evaluating the severity of the hearing loss in his left ear, as this would violate VA's anti-pyramiding regulation.  See 38 C.F.R. § 4.14.

Under the VA Rating Schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test.  38 C.F.R. § 4.85.  The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz , shown on a puretone audiometry test.  38 C.F.R. § 4.85.  To find the appropriate disability rating based on test results, the puretone threshold average for each ear is considered in combination with the percentage of speech discrimination to establish a hearing impairment level, labeled from I for essentially normal hearing to XI for profound deafness.  See 38 C.F.R. § 4.85, Table VI.  The hearing impairment levels of both ears are then considered together to establish a disability rating for the hearing loss.  See 38 C.F.R. § 4.85, Table VII.

For exceptional patterns of hearing impairment, that is, when the puretone threshold at each of the four frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1,000 Hertz , and 70 decibels or more at 2,000 Hertz, the Roman numeral hearing impairment level is determined from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86(a) and (b).  The Veteran, however, has not been shown to have these exceptional patterns of hearing impairment, so this exception does not apply.

If, as here, impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I.  38 C.F.R. § 4.85(f).  However, if hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more, compensation is payable for hearing impairment in both the service-connected and non-service-connected ears if hearing impairment in the non-service-connected ear is a ratable disability by VA standards, meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385.  38 C.F.R. § 3.383(a)(3).  This also is not shown here, however, as the hearing loss in the Veteran's service-connected left ear is not compensable to a degree of 10 percent or more; instead, it is noncompensable, i.e., 0-percent disabling.  Therefore, for all intents and purposes, the Board must consider the hearing impairment in his non-service-connected right ear as Level I.

The evaluation of hearing impairment applies a rather structured formula that is essentially a mechanical, meaning nondiscretionary, application of the rating schedule to numeric designations after audiology evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

The claims file contains reports of private VA audiological examinations dated from 1996 to 2003.  There is no indication that the Maryland CNC list was used.  Audiometric findings in August 2003 were similar to those shown on VA examination in July 2005.

VA audiometric testing of the left ear in September 2004 showed mild low frequency conductive hearing loss, sloping to mild to moderate sensorineural hearing loss from 3000 to 8000 hertz.

On VA compensation examination in July 2005, the Veteran complained of bilateral hearing loss.  Audiometric testing revealed right ear decibel thresholds of 75, 105, 110, and 110, and left ear decibel thresholds of 20, 20, 20, and 40 at the respective frequencies of 1000, 2000, 3000, and 4000 hertz.  The puretone threshold average was 100 decibels in the right ear and 25 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 38 percent in the right ear and 98 percent in the left ear.  The examiner diagnosed sensorineural hearing loss in the left ear and mixed hearing loss in the right ear.  The examination results correspond with a hearing impairment level in the left ear of I, under Table VI.  When considered with a hearing impairment level of I in the right ear, those test results are consistent with a 0-percent rating.  38 C.F.R. § 4.85, Diagnostic Code 6100.

By a letter dated in March 2006, a private audiologist, P.A.K., M.A., stated that the Veteran had been her patient for two years, and had bilateral hearing loss, with mild high frequency sensorineural hearing loss of the left ear.  He used amplification which was of significant benefit to him.

VA outpatient treatment records dated from 2004 to 2009 reflect treatment for hearing loss and for ear infections.  These records reflect that the Veteran complained of hearing loss.  A June 2007 audiology note reflects that the Veteran complained of decreased hearing and tinnitus.  Test results showed that the Veteran's hearing was within normal limits through 2000 hertz with mild to severe sensorineural hearing loss in the left ear, and excellent word discrimination in the left ear.  An August 2007 audiology note reflects that the Veteran reported that with use of his hearing aid, he heard much better in situations that were difficult prior to hearing aid use.  The evidence reflects that his VA treatment providers noted the functional impairment caused by the Veteran's hearing loss. See Martinak v. Nicholson, 21 Vet. App. 447 (2007).

The Board is mindful of the difficulties the Veteran reported because of his hearing loss.  But according to the results of his hearing evaluations, he simply did not have sufficient hearing loss to warrant assigning a compensable rating for this disability.  Lendenmann, supra.  In sum, the Board finds that for the reasons and bases discussed, the preponderance of the evidence is against this claim for a compensable rating for this disability, and has been since the effective date of this award.  The Board therefore cannot "stage" this rating.  See Fenderson, supra. 

Further, there is no evidence of exceptional or unusual circumstances to warrant referring this claim for extraschedular consideration.  38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1).

The Board finds no such evidence in this particular instance, however.  The Veteran's complaints related to his hearing loss are considered under the appropriate diagnostic codes.  The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  Hence, the rating criteria contemplate his symptomatology.  According to 38 C.F.R. § 4.1, 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.  Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired.

The assigned schedular evaluation for the service-connected left ear hearing loss is adequate and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).  Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule.  His evaluation and treatment for this disability has been entirely on an outpatient basis, not as an inpatient.  Extraschedular referral is not warranted under the circumstances presented. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

The preponderance of the evidence therefore is against assigning a rating higher than 0 percent for the left ear hearing loss.  And since the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in the appellant's favor, and this claim must be denied.  38 C.F.R. §§ 4.3, 4.7.


ORDER

The petition to reopen the claim for service connection for squamous cell carcinoma of the right external auditory canal is denied, for substitution or accrued benefits purposes. 

Service connection for right ear hearing loss is denied, for substitution or accrued benefits purposes. 

The claim for an initial compensable rating for the service-connected hearing loss of the left ear is denied, for substitution or accrued benefits purposes. 



______________________________________________
S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs