Citation Nr: 1330600	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  12-23 002	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona



THE ISSUES

1.  Entitlement to a compensable evaluation for idiopathic retinal hemorrhages of the right eye (right eye disability).

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for tinnitus.



REPRESENTATION

Appellant represented by:	Disabled American Veterans





WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1967 to June 1971.
      
This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.  Jurisdiction over the case was subsequently transferred to the RO in Phoenix, Arizona.

A Board hearing was held before the undersigned Veterans Law Judge at the RO in February 2013.  A transcript of the hearing is of record.  The Veterans Law Judge held the record open for a 60-day period following the hearing to allow for the submission of additional evidence.  Thereafter, the Veteran submitted additional evidence, along with a written waiver of the RO's initial consideration.

A review of the Virtual VA and VBMS electronic claims files does not reveal any additional documents pertinent to the present appeal, with the exception of the Board hearing transcript noted above.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to service connection for bilateral hearing loss and for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Throughout the appeal period, the Veteran's has been equivalent to localized scars, atrophy, or irregularities of the retina that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. 

2.  The Veteran's idiopathic retinal hemorrhages of the right eye are not productive of visual acuity impairment of 20/50 in one eye and 20/40 in the other eye, visual field impairment, muscle function impairment, or incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months.


CONCLUSION OF LAW

The criteria for a 10 percent evaluation, but no higher, for idiopathic retinal hemorrhages of the right eye have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.75-4.79, Diagnostic Code 6011 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

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; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 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).

In this case, the RO provided the Veteran with a notification letter in May 2011, prior to the initial decision on the claim in June 2011.  Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant.

Moreover, the requirements with respect to the content of the notice were met in this case.  The May 2011 letter notified the Veteran that, to substantiate a claim for increased compensation, 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 letter provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) relevant to establishing entitlement to increased compensation.  Specifically, he was informed of types of evidence that might show such a worsening, including information about ongoing treatment, Social Security Administration determinations, statements from employers, and lay statements from people who have witnessed how the disability symptoms affect him.  The letter also informed the Veteran of the division of responsibilities in obtaining the evidence to support his claim and explained how disability ratings and effective dates are determined.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file.  He has not identified any available, outstanding records that are relevant to the claim decided herein.  Moreover, the record also includes written statements provided by the Veteran and his representative, as well as a transcript of the February 2013 Board hearing.

The Veteran was also afforded a VA examination in May 2011 in connection with his current claim.  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 and the claims file, as well as on an examination and fully addresses the rating criteria that are relevant to rating the disability in this case.

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. 

Thus, there is adequate medical evidence of record to make a determination in this case.  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). 

As previously noted, the Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2013.  The Veterans Law Judge clearly set forth the issues to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information when appropriate.  The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claims.  As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

VA has further assisted the Veteran throughout the course of this appeal by providing him and his representative with a statement of the case, which informed them of the laws and regulations relevant to the claim.  The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate.  Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.


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 entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  In this case, as explained below, a uniform rating is warranted.
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran contends that he is entitled to a higher evaluation for his service-connected right eye disability, which is currently assigned a noncompensable rating pursuant to 38 C.F.R. § 4.79, Diagnostic Codes 6099-6006.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  In this case, the disability is rated as analogous to retinopathy or maculopathy.

Under the General Rating Formula for Diagnostic Codes 6000-6009 (certain enumerated diseases of the eye) in 38 C.F.R. § 4.79 (General Rating Formula), disability ratings are based on either visual impairment due to the particular disorder or incapacitating episodes, whichever results in a higher evaluation.  Under this criteria, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months.  A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months.  A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months.  A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  An incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider.  38 C.F.R. § 4.79, General Rating Formula, Note.

The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  38 C.F.R. § 4.75(a).  Visual acuity is evaluated on the basis of corrected distance vision with central fixation.  38 C.F.R. § 4.76(b).  Where only one eye is service-connected, the visual impairment of the nonservice-connected eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment, subject to the provisions of the paired organ rule under 38 C.F.R. § 3.383(a).  38 C.F.R. § 4.75(c).

Under Diagnostic Code 6066, a 10 percent rating is warranted where the best corrected distance visual acuity is 20/50 in one eye and 20/40 in the other, with higher ratings for additional impairment.  A maximum 90 percent rating is warranted where the best corrected distance visual acuity is 10/200 in each eye, and 100 percent ratings may be assigned for additional impairment of visual acuity under other diagnostic codes.

Under Diagnostic Code 6011, a 10 percent rating is warranted for retinal scars, atrophy, or irregularities characterized by localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image.  Alternatively, the disability is evaluated based on visual impairment due to retinal scars, atrophy, or irregularities, if this would result in a higher evaluation.

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

Historically, the Veteran has experienced intermittent retinal hemorrhages since the in-service occurrence, including after post-service trauma to the eye.  His private doctor following the post-service trauma in 1976, Dr. H.C. (initials used to protect privacy), noted the history of right eye trauma and indicated that such retinal bleeding was likely to recur.  See, e.g., Dr. H.C. February 1977 private treatment record submitted with current claim and September 1977 written submission; Dr. G.I. August 1976 treatment record.

During the course of the current claim, the Veteran reported that he continues to have intermittent retinal bleeding episodes, varying in frequency between once a month up to yearly, which gradually resolve without treatment.  During these episodes, he has difficulty seeing clearly until resolution.  See, e.g., August 2009 and February 2013 VA treatment records; August 2012 substantive appeal (VA Form 9); February 2013 Bd. Hrg. Tr. at 14-15, 24.  The Veteran also reported a history of adjusting his right eye position to compensate for a translucent area, which he believes causes visual impairment, thereby affecting his safety.  See, e.g., May 2011 and June 2011 written statements; February 2013 Bd. Hrg. Tr. at 14-15.

VA and private treatment records do not show findings of actual retinal bleeding, a history of incapacitating episodes, visual field disturbance, muscle function impairment, or visual acuity impairment measured to 20/50 in at least one eye on examination.  In this regard, during multiple optical examinations, corrected (and uncorrected) distance visual acuity in the right eye was at noncompensable levels as provided under Diagnostic Code 6066, and the Veteran reported vision being stable.  See August 2009, October 2010, February 2013 VA treatment records; May 2011 VA examination; September 2012 private treatment record.  During his February 2013 VA optometry consultation, he reported that he only used glasses to drive and for reading.

These treatment records also reflect that the Veteran presently has a lamellar macular hole with no major effect on vision, likely related to prior trauma, and is symptomatic for metamorphopsia (disturbance of vision in which objects are seen as distorted in shape, as defined in Dorland's Illustrated Medical Dictionary, 1161 (31st ed. 2007)), both of the right eye.  See, e.g., October 2010 VA treatment record; September 2012 private treatment record from Dr. P.P.

The Veteran was afforded a VA examination in May 2011 during which the examiner reviewed and noted the Veteran's right eye history.  The Veteran reported that there was a translucent spot off to the side of his vision making it harder for him to drive, and he indicated that he experienced pressure over the eye.  He also reported the history of being hit in the right eye with a piece of wood in 1976, which caused more hemorrhaging.  There was no history of incapacitating periods or eye neoplasm.  On examination, corrected distance visual acuity was 20/20 in both eyes, and there were no physical findings of diplopia (muscle function defect), a visual field defect, abnormal accommodation, lacrimal duct function, or abnormal eyelids, and no chronic conjunctivitis, lagophthalmos, symblepharon, ptosis, nystagmus, or eyelash or eyebrow loss.  A lamellar macular hole, weiss ring, and metamorphopsia adjacent to fixation were noted on the right eye following testing.  Trace nuclear sclerosis and cortical changes were also noted on both eyes.  The diagnoses were lamellar macular hole, right eye; trace cataracts, both eyes; history of retinal bleeding, right eye.  The examiner noted that the cataracts were unrelated to service.  For the lamellar macular hole and history of retinal bleeding, the examiner indicated that the Veteran had correctable vision to 20/20 in both eyes.  The examiner also noted that the Veteran was symptomatic for seeing a translucent spot adjacent to fixation and that he had a history of trauma to the eye in service and after service.  The examiner further noted that there was documentation of past retinal bleeding, but no active bleeding on examination or during the recent VA ophthalmology appointments.  There was also no functional vision loss.

During a February 2013 VA optometry consultation, the doctor noted a "grey floater like coming off vessel" just superior to the optic nerve head.  A notation was made of "sight of vessels bleeds vs resolving bleed vs floater?" with referral for a retinal specialist indicated.

During the February 2013 Board hearing, the Veteran testified as to his history of eye trauma in service and thereafter.  He noted that, during his past work as a meteorologist, he would look up at the sky, feel pressure in his eye, and then see "little geysers go off of blood spots."  Aside from the permanent cloudy eye spot, the bleeding episodes resulted in self-described "floaters," which impacted his vision until they resolved through reabsorption.  He did not regularly see a doctor for this condition and just "deal[t] with" it each time until it resolved.  His wife also testified to observing the ongoing bleeding episodes.  See February 2013 Bd. Hrg. Tr. at 13-16, 18, 23-24.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 10 percent evaluation throughout the appeal period for idiopathic retinal hemorrhages of the right eye under Diagnostic Code 6011.  In this regard, the Board notes that the Veteran has not been shown to have the required visual impairment or incapacitating episodes to qualify him for a compensable rating under Diagnostic Code 6006.  However, the record does reflect that he exhibits functional impairment as a result of the symptomatology of the disability for which he was originally evaluated - intermittent retinal hemorrhaging - which is not completely contemplated under the rating criteria of Diagnostic Code 6006 in this case.  In this regard, the record reflects a history of retinal bleeding following the in-service trauma and post-service, and one of his treating physicians noted that such bleeding was likely to recur.  The Veteran and his wife have credibly reported that this symptomatology continues on an intermittent basis, to include in the absence of trauma, and causes the Veteran to have difficulty with use of his eye, including irregularities in vision, until the bleeding resolves.  See Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (Veteran competent to report as to symptoms he experiences through his senses, such as visible retinal bleeding, and their history).  Moreover, the February 2013 VA doctor noted that the grey floater on examination could possibly be the site of a vessel bleed or a resolving bleed.

Based on consideration of the relevant medical history and demonstrated symptomatology in this case, the Board finds that such resulting functional impairment during these episodes is consistent with the criteria contemplated for a centrally located retinal irregularity under Diagnostic Code 6011.  Therefore, the Board finds that the Veteran's right eye disability is more appropriately rated under Diagnostic Code 6011.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (assignment of a proper diagnostic code "completely dependent upon the facts of a particular case"); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (a change in a diagnostic code by a VA adjudicator should be specifically explained).

In addition, the Board notes that some evidence of record as discussed above suggests that the right eye lamellar macular hole and symptomatic metamorphopsia are at least partly attributable to the in-service eye trauma, and there is no specific finding of record to the contrary.  See, e.g., October 2010 VA treatment record; May 2011 VA examination.  When it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the Veteran's favor, clearly dictates that such signs and symptoms be attributed to service-connected condition.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  However, even applying this consideration here, the overall signs and symptoms of the right eye (excluding the cataracts specifically noted as not service-related) do not support the assignment of a higher or separate evaluation, such that a remand for a VA examination or opinion would be necessary at this time.

While the 10 percent evaluation is the highest schedular rating available under Diagnostic Code 6011 absent visual impairment under the alternative criteria, the Board must also consider all other potentially applicable diagnostic codes.  Again, the record does not reflect that the Veteran has the necessary visual impairment or incapacitating episodes to result in either an alternative, higher rating under Diagnostic Code 6011 (visual impairment) or a more appropriate rating under the General Rating Formula for Diagnostic Codes 6000 through 6009 discussed above.  Trace cataracts, while found on the May 2011 VA examination, were specifically noted to be unrelated to service.  In the absence of a showing of any remaining related disorders of the right eye, a higher or separate evaluation for the right eye disability by analogy or otherwise is not appropriate at this time.  38 C.F.R. § 4.79, Diagnostic Codes 6000-6091.

The Board is also mindful of the provisions regarding protected ratings, inasmuch as the original rating for the right eye disability has been continuously in effect for more than 20 years.  However, this change in the assigned diagnostic code does not result in a reduction of compensation, as the Veteran was never in receipt of a compensable evaluation, and is accordingly not tantamount to a reduction of a protected rating.  See 38 C.F.R. § 3.951(b); Murray v. Shinseki, 24 Vet. App. 420 (2011).  Moreover, as previously discussed, the Veteran does not meet the criteria for a compensable evaluation under the original diagnostic code, and the original service-connected symptomatology is the basis for the current rating assigned.  As such, the Board also finds that separate ratings based on the change in diagnostic codes are not appropriate in this case.

The Board has also considered the lay evidence of record regarding the Veteran's observable eye symptoms, to include the Veteran's reports during VA examinations and the written submissions and testimony, in deciding this case.  See Layno, supra; Buchanan, supra.  However, even affording this lay evidence full competence and credibility, such evidence does not support a rating higher than the one currently assigned.

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 right eye disability 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.  The Veteran's chief complaint of a retinal irregularity resulting in functional impairment is contemplated in the assignment of the 10 percent disability rating.  As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations.  

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected right eye disability 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).


ORDER

Subject to the provisions governing the award of monetary benefits, a 10 percent evaluation for idiopathic retinal hemorrhages of the right eye is granted under Diagnostic Code 6011.


REMAND

The Board finds that further development is necessary prior to final adjudication of the Veteran's claims.

The Veteran was afforded a VA examination in May 2011 at which time he was diagnosed with bilateral sensorineural hearing loss and tinnitus, which was as likely as not a symptom associated with hearing loss.  The examiner determined that hearing loss was not caused by or a result of in-service noise exposure and that it was less likely as not that tinnitus was a result of such noise exposure.  In so finding, the examiner considered the Veteran's reported history of onset and post-service occupational and recreational noise exposure after service duties as an aerographer's mate around aircraft.  She based her rationale on the fact that the Veteran did not have a significant threshold shift during service and noted that his hearing was exceptionally good at separation.  She also indicated that tinnitus was not consistent with the documented auditory thresholds.

During the February 2013 Board hearing, the Veteran's representative challenged the premise of the VA examiner's opinion contending that she did not fully consider the Veteran's reported history of onset and noise exposure.  The Veteran also testified that he used hearing protection in his post-service hobby of hunting, which was not clearly noted on the examination report. 

The Board notes that the Veteran's measured hearing acuity at separation showed an improvement in some frequency levels from testing done at entrance to service.  However, the absence of in-service evidence of hearing loss disability is not fatal to the Veteran's claim.  38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Rather, competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

On review, it is unclear if the May 2011 VA examiner fully contemplated the Veteran's report of in-service and post-service noise exposure.  Moreover, the opinion was largely based on a lack of in-service hearing loss.  It would have been helpful had the VA examiner brought her expertise to bare regarding medically known or theoretical causes of sensorineural hearing loss and tinnitus or described how hearing loss and tinnitus which result from noise exposure or acoustic trauma generally present or develop in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in rendering the opinion.

In light of the above, the Board finds that a clarifying medical opinion on the nature and etiology of the Veteran's hearing loss and tinnitus is necessary in this case.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO/AMC should refer the Veteran's claims folder to the May 2011 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. 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 statements.

It should be noted that the absence of in-service evidence of a hearing loss disability during service is not always fatal to a service connection claim.  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.  

It should also be noted that the Veteran is competent to report a history of noise exposure during service.
The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current bilateral hearing loss and tinnitus manifested during or are otherwise etiologically related to his military service, including noise exposure therein.  He or she should also address whether the Veteran's tinnitus is caused by or otherwise related to his hearing loss.  

In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develops from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause.

(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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a 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), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review.

An additional examination of the Veteran should be performed if deemed necessary by the person providing the opinion.

2.  After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the case should be reviewed by the RO/AMC on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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

These claims 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