Citation Nr: 1329425 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 12-14 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a compensable rating for service connected bilateral hearing loss. 2. Entitlement to service connection for a skin disorder, to include basal cell carcinoma, squamous cell carcinoma and keratoses due to Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In Clemons the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, the medical evidence and the Veteran's submissions, the Board has recharacterized the issue on appeal as entitlement to service connection for a skin disorder, to include basal cell carcinoma, squamous cell carcinoma and keratoses. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The Board has not only reviewed the Veteran's physical claims file, but also the electronic record maintained in the Virtual VA system to ensure total review of the evidence. The issue of service connection for a skin 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. FINDING OF FACT The Veteran's service connected bilateral hearing loss is productive of level II hearing acuity in the right ear and level II hearing acuity in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for the Veteran's service connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.85, Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, 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). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, the Veteran filed his claim for a higher disability rating for the service-connected bilateral hearing loss in October 2011. That same month, the RO issued a letter to the Veteran that provided the Veteran with notice of how to substantiate a claim for an increased rating and how ratings and effective dates are assigned. The letter further informed the Veteran of the allocation of responsibilities between himself and VA. In addition, the Veteran was afforded a VA examination (VAX) in connection with his claim in November 2011. The examination was adequate as the examiner reviewed the Veteran's case file and conducted appropriate tests to determine the Veteran's current level of severity thus providing sufficient information for the Board to render an informed determination. For the foregoing reasons, the Board finds that VA has satisfied its duties to notify and assist the Veteran. Accordingly, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claims. II. Ratings Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafarth v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Increased Rating for Bilateral Hearing Loss The Veteran's sensorineural bilateral hearing loss is rated under DC 6100. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The current version of the Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state- licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. If 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, subject to the provisions of § 3.383 of this chapter. Id. The current rating criteria also include an alternate method of rating exceptional patterns of hearing, as defined in 38 C.F.R. § 4.86. Table VIA will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone threshold 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. 38 C.F.R. § 4.86(a). When the puretone threshold is 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. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Here, the Veteran was afforded a VA examination in November 2011. The examination revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 45 45 50 50 LEFT 45 45 50 50 The puretone threshold average was 48 dB for the right ear and 48 dB for the left ear. Word recognition scores were 84 percent for the right ear and 84 percent for the left ear. Such findings translate to level II hearing for the right ear and level II hearing for the left ear. See 38 C.F.R. §§ 4.85, Table VI, § 4.86 (a). Neither of the Veteran's ears meet the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86(a) or (b) and therefore will be evaluated according to 38 C.F.R. § 4.85. Applying Table VII, DC 6100, this equates to a noncompensable rating. The Court has held that, in addition to providing objective test results, a VA audiologist must fully describe the effects of a disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The November 2011 examiner noted the Veteran's report that he recently acquired hearing aids through the VA. The Board acknowledges the Veteran's contentions regarding the impact of his hearing loss on his daily activities, and VA's obligation to resolve all reasonable doubt in the Veteran's favor. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann, supra; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, DC 6100. Applying the audiological test results to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to an increased rating for any period of time that is covered by this claim. There is no reasonable doubt to be resolved. The Veteran may always advance an increased rating claim should the severity of his hearing loss disability increase in the future. IV. Extraschedular Consideration The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected bilateral hearing loss disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In this regard, the November 2011 VAX noted that the Veteran "recently acquired hearing aids." In addition, the Veteran has reported that it is difficult to hear at parties and that his wife complains about his inability to hear. The rating criteria specifically contemplate difficulty hearing. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. V. Total Disability Rating Lastly, the Court has recently held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009)(citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)). However, the holding of Rice is inapplicable here because the evidence of record does not illustrate that the Veteran's service-connected bilateral hearing loss prevents him from obtaining and/or maintaining gainful employment-nor has the Veteran so contended. In fact, at an August 2012 VAX for an unrelated issue, the examiner noted that the Veteran has been employed with the Nebraska State Patrol conducting audits and administrative work for the past 43 years. At this point, therefore, there is no cogent evidence of unemployability and the issue of entitlement to a TDIU need not be addressed further. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. REMAND Regarding the skin disorder claim, in a January 1997 report, Dr. R.R. noted that the Veteran had "basal cell carcinoma removed from the right upper forehead area by Dr. Stevenson [about 10 years prior]." However, the private medical records from Dr. Stevenson have not been associated with the case file. Moreover, in the August 2012 VAX, the examiner noted that the Veteran's dermatology visit with Dr. Bond was around June 2012. However, the most recent record from Dr. Bond was in December 2011. Accordingly, as the Board is now on notice of the existence of private medical records that are pertinent to the Veteran's claim, reasonable efforts to obtain those records should be made on remand. Specifically, the Veteran should be requested to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of the private records. The Board also finds additional medical inquiry warranted for several reasons. In his October 2011 VA Form 21-526, the Veteran claimed "service connection for skin cancer due to service in Vietnam." The Veteran was afforded an examination in November 2011 in connection with his claim for service-connection for skin cancer due to Agent Orange exposure. However, the examiner did not provide an opinion and noted that "no opinion was required of myself (sic) for this evaluation." See November 2011 VAX. The Veteran was afforded another examination in August 2012, where the examiner did not provide an opinion as to whether the Veteran's skin disorder was due to exposure to Agent Orange. Rather, the opinion was limited to whether the Veteran's skin disorder was due to sun exposure in the Republic of Vietnam. As the Board is required to consider the various theories of entitlement for which the Veteran advances, the Board finds that a remand is warranted to obtain an opinion which addresses the Veteran's claim for service connection based on Agent Orange exposure. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide or authorize the release of records from Drs. Stevenson and Bond, as well as any other records, not already of record, that are relevant to his claim. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain any relevant VA medical records dating from February 2012 that have not yet been associated with the claims folder or Virtual VA. 3. After completing the steps described above, provide the Veteran's VA claims folder to the VA examiner who conducted the August 2012 examiner, if available. The original examiner, or another qualified examiner, should review the claims folder. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's skin disorders (i.e. basal cell carcinoma, squamous cell carcinoma, actinic keratoses, and seborrheic keratoses) began in or are related, at least in part, to any incident of military service, including sun and presumed herbicide exposure. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The examiner's attention is drawn to the Veteran's 1997 medical records from his private physician, Dr. R.R, which indicate that "about ten years prior" the Veteran had basal cell carcinoma removed from the right upper forehead. 4. Ensure the development outlined above has been accomplished, and then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ S.S. Toth Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs