Citation Nr: 1330200	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  12-04 869	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee



THE ISSUES

1.  Entitlement to an initial compensable evaluation for bilateral hearing loss.

2.  Entitlement to service connection for a brain disorder, to include as secondary to exposure to Agent Orange.



REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs



ATTORNEY FOR THE BOARD

B. Rideout, Associate Counsel 


INTRODUCTION

The Veteran had active duty service from September 1969 to September 1971.  He also had subsequent reserve duty service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  In that decision, the RO denied service connection for a brain disorder, but granted service connection for bilateral hearing loss and assigned a noncompensable evaluation effective from June 30, 2009.

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

The issue of entitlement to service connection for a brain 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 has Level I hearing in both ears.



CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a)  and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Nevertheless, the Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for bilateral hearing loss.  In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003).  Thus, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for bilateral hearing loss.

In addition, the duty to assist the Veteran has also been satisfied in this case.  All identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any outstanding records that are relevant to the issue being decided herein.  In fact, he specifically indicated in March 2010 that he had nothing else to submit.

The Board notes that the Veteran's service treatment records are not associated with the claims file; however, the RO has documented its numerous attempts to obtain these records.  In March 2010, the RO also notified the Veteran that they were unable to obtain his service treatment records and advised him that he should submit any service treatment records or alternate source of evidence he had or could obtain.  Moreover, the Board notes that the grant of service connection and noncompensable evaluation were assigned an effective date of June 30, 2009, which is more than 30 years after the Veteran's separation from service.  Thus, the service treatment records would not pertain to the present level of severity of the disability.  Accordingly, the Board concludes that any further attempts to obtain the Veteran's service treatment records would be futile in this case.

In addition, the Veteran was afforded a VA examination in March 2010 in connection with his claim for bilateral hearing loss. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination in this case is adequate, as it is predicated on a review of the Veteran's medical history as well as on an examination and fully addresses the rating criteria that are relevant to rating the disability in this case.

In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United States Court of Appeals for Veterans Claims (Court) held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. 

In this case, the March 2010 VA examiner noted that the Veteran has difficulty understanding speech if he is not facing the person speaking.  The Veteran also denied any other ear-related symptoms during that examination.  Moreover, in Martinak, the Court noted that, even if an audiologist's description of the functional effects of the appellant's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  There have been no allegations of any prejudice caused by a deficiency in the examination here.  Indeed, the Veteran has been represented throughout the course of the appeal, yet the documents submitted do not contain any such assertion.

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. 

The Board does acknowledge that the Veteran requested a new examination by an ear, nose, and throat specialist in his June 2010 notice of disagreement.  This request was made just three months after his March 2010 VA audiology examination, and he made no allegations that the March 2010 examination was inadequate.  Nor did he assert that his disability had worsened since the last examination.  Moreover, the regulations specifically provide that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist.   Indeed, in Cox v. Nicholson, 20 Vet. App. 563 (2007), the Court held that it has never required that medical examinations under section 5103A only be conducted by physicians.  As provided by 38 C.F.R. § 3.159(a)(1), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions."  As explained by the United States Court of Appeals for the Federal Circuit  (Federal Circuit) in Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Board is entitled to assume the competence of a VA examiner, and the appellant bears the burden of persuasion on appeal to show that such reliance was in error. See Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009), citing Hilkert v. West, 12 Vet. App. 145, 151 (1999) and Butler v. Principi, 244 F.3d 1337, 1340   (Fed. Cir. 2001).  The Veteran has submitted no evidence to suggest that the audiologist who examined him in March 2010 was not competent to perform the examination and prepare a report for adjudication purposes.  As such, the Board presumes that the examiner was competent for such purposes. Thus, the Veteran did not trigger the need for an additional VA examination in his June 2010 notice of disagreement. 

Thus, there is adequate medical evidence of record to make a determination as to the Veteran's bilateral hearing loss.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4).

The Veteran and his representative have not identified any other outstanding evidence which has yet to be obtained or suggested that the Veteran's bilateral hearing loss has increased in severity since the March 2010 VA examination.  

Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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).



Law and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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 for that rating. 38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). 

The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. 

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lindenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85. 

Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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).  The provisions of 38 C.F.R. § 4.86(b)  further provide that when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. 

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher initial evaluation for his bilateral hearing loss.  

On the authorized audiological evaluation during the March 2010 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
40
40
LEFT
20
15
10
40
40

The pure tone threshold average was 28.8 decibels in the right ear and 26.3 decibels in the left ear.  Speech audiometry also revealed speech recognition ability of 94 percent in both ears.  These audiometric findings equate to level I hearing in both ears. See 38 C.F.R. § 4.85, Table VI.  When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85 .

The Board has also considered whether an initial compensable evaluation for bilateral hearing loss is warranted under 38 C.F.R. § 4.86.  However, the Veteran's disability does not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the available audiometric findings do not show the Veteran to have puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a puretone threshold of 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz.  Thus, the Board finds that the noncompensable evaluation is appropriate and that there is no basis for awarding a higher initial evaluation. 

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)  ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which includes difficulty hearing speech.  In fact, the Veteran denied having any other related symptoms during the March 2010 VA examination.  Moreover, as discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such impairment.  

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1)  have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

Lastly, the Board notes that the Veteran has not claimed that his hearing loss renders him unemployable.  The record also does not show that his disability prevents him from obtaining or maintaining employment.  Therefore, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability has not been reasonably raised by the Veteran or the record.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).


ORDER

An initial compensable evaluation for bilateral hearing loss is denied.


REMAND

In this case, the Veteran has not been afforded a VA examination in connection with his claim for service connection for a brain disorder, which he contends is due to herbicide exposure.  His service personnel records do indicate that he served in in the Republic of Vietnam during the Vietnam era, and he is therefore presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. 

Although brain cancer is not on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). 

Nevertheless, the evidence of record does not include a medical opinion based on a complete review of the claims file specifically addressing whether the Veteran currently has a brain disorder that is causally or etiologically related to his herbicide exposure in service.  In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  Therefore, the Board finds that a VA medical opinion is necessary for determining the nature and etiology of any brain disorder that may be present.

Additionally, the record shows that the Veteran was scheduled for additional testing and a follow-up for his brain disorder, to include magnetic resonance imaging, in March 2011 and April 2011.  However, records of such evaluations are not associated with the file.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a brain disorder.  After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. 

The RO/AMC should also obtain any outstanding VA medical records dated from March 2010 to the present.

2.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any brain disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. 

It should be noted that the Veteran is presumed to have been exposed to certain herbicide agents, including Agent Orange, during his military service.  The examiner should then state whether it is at least as likely as not that the Veteran currently has a brain disorder that is due to his herbicide exposure in service or that is otherwise causally or etiologically related to his military service. 

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 

3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This 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).




______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs