Citation Nr: 1329835	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  10-16 582	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Jackson, Mississippi


THE ISSUES

1.  Entitlement to a compensable rating for the service-connected right ear hearing loss prior to July 30, 2010.

2.  Entitlement to a rating in excess of 20 percent for the service-connected bilateral hearing loss, to include a rating in excess of 10 percent prior to November 21, 2011.

3.  Entitlement to service connection for groin rupture.

4.  Entitlement to service connection for testicle rupture.


REPRESENTATION

Veteran represented by:	The American Legion




ATTORNEY FOR THE BOARD

Andrea Johnson, Associate Counsel


INTRODUCTION

The Veteran had active military service from June 1966 to February 1970.

This appeal comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the RO that denied the Veteran's claim for a compensable rating for the service-connected right ear hearing loss disability.  

In a January 2012 rating decision, the RO granted service connection for a left ear hearing loss disability.

In an April 2013rating decision, the RO assigned an increased rating of 10 percent, effective on July 30, 2010, and a rating of 20 percent, effective on November 21, 2011, for the service-connected bilateral hearing loss disability.

In the April 2013 rating decision, the RO granted service connection for posttraumatic stress disorder and assigned a 10 percent rating, effective on March 31, 2009 and 30 percent rating, effective on October 18, 2012.    

The Board has not only reviewed the Veteran's claims file, but also his file on the "Virtual VA" system.


FINDINGS OF FACT

1.  The service-connected right ear hearing loss disability is shown to have been productive of no worse than IV hearing acuity prior to July 30, 2010.

2.  The service-connected bilateral hearing loss disability is not shown to have been productive of worse than level IV hearing acuity in the right ear or worse that level V hearing acuity on the left prior to November 21, 2011 or worse than level V hearing acuity in the right ear or worse than level VI hearing acuity on the left beginning on that date.

3.  The Veteran is not shown to have manifested complaints or findings of a rupture or other disorder of the groin or testicles during service.  

4.  The Veteran currently is not shown to have a rupture of the groin or testicles that is due to an event or incident of  his period of active service.   


CONCLUSIONS OF LAW

1.  The criteria for the assignment of a compensable rating for the service-connected right ear hearing loss disability prior to July 30, 2010 have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.385, 4.1, 4.2, 4.7, 4.85-4.87 including Diagnostic Code 6100 (2013).

2.  The criteria for the assignment of a rating in excess of 10 percent prior to November 21, 2011 or in excess of 20 percent beginning on that date for the service-connected bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.385, 4.1, 4.2, 4.7, 4.85-4.87 including Diagnostic Code 6100 (2013).  

3.  The Veteran does not have a disability manifested by a rupture of the groin due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).

4.  The Veteran does not have a disability manifested by a rupture of a testicle due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Rating for Hearing Loss

The Veteran is seeking increased rating for his service-connected hearing loss.  By way of background, the Veteran initially filed a claim of service connection for bilateral hearing loss in January 2000.  The RO granted service connection for hearing loss of the right ear was granted, effective in June 1999.  

The Veteran filed the current claim for an increased rating in March 2009.   Service connection for left ear hearing loss was granted effective on July 30, 2010, the date of claim.  

The service-connected right ear hearing loss was assigned a noncompensable rating prior to July 30, 2010.  His bilateral hearing loss condition was assigned a 10 percent rating effective on July 30, 2010.  A higher 20 percent rating was assigned effective on November 21, 2011.  

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  

Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  

Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.  

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

Under the regulations, the assignment of a disability rating for hearing impairment is derived by applying the results of audiometric evaluations to tables included in the rating schedule.  38 C.F.R. § 4.85.  

Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes eleven auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness.  Id.

When the pure tone 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).  

Similarly, if the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral.  

Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average.  Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph.  38 C.F.R. § 4.85(c).  

In March 2009, a VA audiologist noted that the Veteran's hearing thresholds had decreased.  She opined the Veteran had "moderate to severe" hearing loss, bilaterally, with good speech recognition "at loud presentation level."  She noted the Veteran wore his hearing aids on full-time basis.

In April 2009, the Veteran was afforded a VA hearing examination.  The Veteran reported experiencing decreased hearing since his military service.  Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels.




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
50
60
70
60
LEFT
N/A
55
65
65
60

The average pure tone threshold in the right ear was 60 decibels, while the average pure tone threshold in the left ear was 61 decibels.  The physician also administered the Maryland CNC word list pursuant to VA regulations.  See 38 C.F.R. § 3.485.  The Veteran attained a 78 percent score in his right ear and a 76 percent score in his left ear.

A pure tone average threshold of 60 in the right ear with a 78 percent speech discrimination score equates to level IV hearing acuity.  38 C.F.R. § 4.85, Table VI.  As discussed, prior to July 30, 2010 the Veteran was service connected for hearing loss in his right ear only.  

Under VA regulations in order to determine the percentage evaluation from Table VII if impaired hearing is service connected in only one ear the nonservice-connected ear will be assigned a level I for hearing impairment.  38 C.F.R. § 4.85(f).  

Accordingly, the level IV rating in the right ear and level I rating in the left ear equate to a noncompensable rating for the service-connected right ear hearing loss disability.  38 C.F.R. § 4.85, Table VII.   

In his May 2009 written statement, the Veteran asserted that his ears were getting worse.  In his June 2009 Notice of Disagreement, the Veteran again stated that his hearing had become worse since service.  He reported having had three sets of hearing aids since 1985.

As discussed, in a January 2012 rating decision, the RO granted service connection for left ear hearing loss effective on July 30, 2010.  According, the Veteran's hearing loss after this date will be evaluated as a service-connected bilateral disability.

In August 2010 the Veteran was provided with an additional VA examination.  Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels.




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
55
65
65
60
LEFT
N/A
55
75
65
65

The average pure tone threshold in the right ear was 61 decibels, while the average pure tone threshold in the left ear was 65 decibels.  The physician also administered the Maryland CNC word list pursuant to VA regulations.  See 38 C.F.R. § 3.485.  The Veteran attained a 78 percent score in his right ear and a 68 percent score in his left ear.

The Veteran's pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) was 55 decibels or more.  According, the Board finds Table VIA applies.  Because application of Table VIA results in a higher numeral than Table VI, Table VIA for rating hearing impaired based only on puretone threshold average will be applied.

An average pure tone threshold of 61 in the right ear equates to a level IV hearing acuity, while average pure tone threshold of 65 in the left ear equates to level V hearing acuity.  38 C.F.R. § 4.85, Table VIA.  

Level IV hearing in the better ear combined with level V hearing in the poorer yields a 10 percent rating for the service-connected bilateral hearing loss disability.  38 C.F.R. § 4.85, Table VII.   

In a November 2011 written statement, the Veteran's wife reported that he had to read lips to communicate upon his return from the army until he received hearing aids in 1983.  She reported that he now had to wear these hearing aids to hear "anyone say anything."

That same month, the Veteran was provided with a third VA examination to evaluate his hearing acuity.  Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels.




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
60
70
70
70
LEFT
N/A
65
80
75
75

The average pure tone threshold in the Veteran's right ear was approximately 68 decibels, while the average pure tone threshold in the Veteran's left ear was approximately 74 decibels.  The physician also administered the Maryland CNC word list pursuant to VA regulations.  See 38 C.F.R. § 3.485.  The Veteran attained an 86 percent score in his right ear and an 84 percent score in his left ear.  The examiner specifically noted the use of the speech discrimination score was appropriate for the Veteran.

The Veteran's pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) was again 55 decibels or more.  According, the Board finds Table VIA again applies.  Because application of Table VIA results in a higher numeral than Table VI, Table VIA for rating hearing impaired based only on puretone threshold average will be applied.

An average pure tone threshold of 68 in the right ear equates to a level V hearing acuity, while average pure tone threshold of 74 in the left ear equates to level VI hearing acuity.  38 C.F.R. § 4.85, Table VIA.  Level V rating in the better ear combined with level VI hearing in the poorer yields a 20 percent rating for the service-connected bilateral hearing loss disability.  38 C.F.R. § 4.85, Table VII.   

In this case, the Board acknowledges that the examiner in April 2009 and August 2010 did not comment on the functional effects the Veteran's hearing disability in the final report.  However, the examiner in November 2011 specifically noted the Veteran's hearing loss impacted his ordinary conditions of daily life.  

Based on all of the foregoing, the Board finds the Veteran's claim for an increased rating for the service-connected hearing loss disability must be denied.  

Prior to July 30, 2010 the Veteran was only service-connected for hearing loss in his right ear.  The results from the April 2009 audiometric testing established that prior to July 2010 the service-connected right ear hearing loss warranted a noncompensable rating.  

The results from the August 2010 VA examination established that the service-connected bilateral hearing loss did not warrant a rating in excess of 10 percent.  

Finally, the results of the November 2011 VA examination established that  the service-connected bilateral hearing loss disability did not warrant a rating in excess of 20 percent.  The record does not contain any additional audiometric testing.  


Service Connection for groin and testical rupture

The Veteran is seeking service connection for "rupture to my groin and testicles."  In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

For the period of the appeal, the Veteran asserts that he injured his groin and testicular region during service.  In his March 2009 claim, the Veteran explained that these conditions were "the result of stepping off low-bar trailer while in Vietnam."  In his June 2009 Notice of Disagreement, the Veteran added that he was injured in the groin in either 1968 or 1969 and was treated and placed off duty for several days.

However, the service treatment records are negative for complaints or findings referable to a groin or testicle disorder during service.  In addition, his February 1970 separation physical examination indicated the Veteran was "normal."  In the accompanying report of medical history, he specifically denied having experienced any "rupture/hernia," providing probative, contemporaneous evidence against his claim.

In a July 2010 statement, the Veteran noted that there was no record of treatment for a groin or testicular injury.  However, he remembered being treated for such a condition and subsequently being hospitalized overnight.   

Significantly, an noted, the evidence does not show that the Veteran has a current disability manifested by a "rupture" or other disorder of the groin or testicles.  In May 2009 written statement the Veteran described his current condition by stating that he had "trouble really bad on my right side."  

As a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing "trouble" on the right side of his groin region.  However, the Veteran lacks the medical training and expertise to provide a diagnosis as to such a disability.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  

In September 1985, the Veteran reported developing pain in left side and left hip several days earlier.  Upon examination, warts were noted in the inguinal area around the scrotum.  The warts were treated with medication, and the pain was treated with a heating pad.

In May 1999 the Veteran was examined in conjunction with his claim for Social Security Administration (SSA) benefits.  This physician performed a genital exam and noted the Veteran was "normal male," providing probative evidence against the Veteran's claim.

In December 1999, Veteran reported having erectile dysfunction since starting new medication, and the medication was discontinued.  In April 2010, large internal hemorrhoids were noted.

July 2010, the Veteran reported complaints of urinary urgency and difficulty voiding.  A VA physician noted that the Veteran's prostate was "boggy, soft and symmetrical" and opined the Veteran had prostatitis, swelling of the prostate.

In October 2011, skin tags were noted in the right scrotum and left groin.  He denied that the tags bleed, but indicated that, because they bothered him, he would have liked to have the tags removed.  In August 2012, acute prostatitis was again noted.

Thus, to the extent that the Veteran is not shown to have a current disability manifested by a rupture of the groin or testicle that can be linked to an injury or other specific event or incident of his period of active service, the claim must be denied by law.  


Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to veterans.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must:  (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  

In the present case, the required notice was provided by letters dated in March 2009 and October 2011, which informed the Veteran of all the elements required by the Pelegrini II Court as stated.  These letters also informed the Veteran how disability ratings and effective dates were established.  Under these circumstances, the Board finds that the notification requirements of VCAA have been satisfied as to both timing and content.

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The service treatment records, post-service VA treatment records, and SSA records have been obtained.  The Veteran did not indicate that he received any private treatment.  Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but declined. 

In regards to his claim for increased rating for hearing loss the Veteran was provided with several VA examinations (the reports of which have been associated with the claims file).  The Board finds the VA examinations were thorough and adequate and provided a sound basis for a decision with regard to the Veteran's claim for increase.  

The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability.  Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations.

The Board acknowledges that the Veteran was not provided with a VA examination regarding his claim of service connection for groin or testicular rupture.  However, as will be discussed, the Board finds that an examination was not required.

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor, the Court has stated that this element established a low threshold and required only that the evidence "indicates" that there might be a nexus between the current disability or symptoms and the veteran's service.  McLendon v. Nicholson, 20 Vet App 79 (2006).

As discussed, the evidence does not establish that he has a current disability due to any "rupture" of the groin or testicle that can be linked to service.  Moreover, the evidence does not establish that any event, injury, or disease occurred in service that would tend to relate to the claimed disability.  The medical evidence after service also establishes that he does not have related disability.  As such, the Board finds the factors of McLendon are not met, and consequently an examination is not required.

As discussed, VA has satisfied its duties to notify and assist with regards to the Veteran's claims and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.


ORDER

An increased rating for the service-connected hearing loss disability is denied.  

Service connection for a claimed rupture of the groin and testicles is denied.



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals



Department of Veterans Affairs