Citation Nr: 1333903	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  10-00 154	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II, due to exposure to Agent Orange. 

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


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel


INTRODUCTION

The Veteran served on active duty from January 1964 to December 1967. 

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for left ear hearing loss and assigned a noncompensable evaluation, effective June 20, 2008.  That decision also denied claims for service connection for right ear hearing loss, and diabetes mellitus due to Agent Orange exposure.  

In December 2009, a hearing was held before a Decision Review Officer (DRO).  In July 2012, a Travel Board hearing was held before the undersigned acting Veterans Law Judge (VLJ).  Transcripts of both hearings are associated with the claims file.

This case was previously before the Board in October 2012 when it was remanded  for further development.  That development has been completed.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In September 2013, the Appeals Management Center (AMC) granted service connection for right ear hearing loss, and assigned a combined noncompensble evaluation for bilateral hearing loss, effective June 20, 2008.  As this rating does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn his claim, the claim is still active.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  Thus, the Board has recharacterized this issue as noted on the title page.

The issues of secondary service connection for diabetic neuropathy, arthritis, cataracts, and peripheral vascular disease (PVD) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 
 
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  When resolving reasonable doubt in the Veteran's favor, the balance of the competent evidence sufficiently establishes his presence within the Republic of Vietnam. 

2.  There is a confirmed clinical diagnosis of diabetes mellitus, type II.

3.  The Veteran's hearing loss measures Level I in his right ear and Level I in his left ear; there is no evidence of an exceptional disability picture sufficient to render the rating schedule inadequate.


CONCLUSIONS OF LAW

1.  The criteria to establish service connection for diabetes mellitus, type II, have been met.  38 U.S.C.A. §§ 1116, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

2.  The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. 
§ 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100 (2013).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

As the Board's decision herein to grant service connection for diabetes mellitus, type II, is a full grant of the benefit sought on appeal, no further action is required to comply with the VCAA with respect to this issue. 

Where, as here with the claim for an initial compensable rating for the service-connected bilateral hearing loss, service connection has been granted, that claim is substantiated.  No additional VCAA notice is required with respect to the downstream issue of the rating assigned to the now service-connected disability.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of his increased rating claim.  VA has obtained VA treatment records, private treatment records, and records from the Social Security Administration (SSA).  

The Veteran was afforded VA examinations to evaluate the severity of his hearing loss in November 2008 and April 2013, and a VA opinion was obtained in September 2013.  The Board finds that the examinations and opinion are adequate.  See 38 C.F.R. § 3.326 (2012); Barr v. Nicholson, 21 Vet. App. 303, 311.  In this case, the November 2008 and April 2013 VA examiners obtained a history of the Veteran's hearing loss and evaluated his current hearing loss symptoms.  The examiners considered the Veteran's assertions that he has difficulty hearing people as well as the impact of the Veteran's bilateral hearing loss on his occupational and social functioning.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  Moreover, the Board notes that hearing loss is evaluated based on a mechanical application of audiometric testing results, and that in this case, the audiogram results are consistent with each other.

Furthermore, the Veteran has not asserted, and the evidence does not indicate, that his hearing has materially increased in severity since the April 2013 evaluation.  See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 

In July 2012, a Travel Board hearing was held before the undersigned acting VLJ.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the acting VLJ noted the elements of the claim that were lacking to substantiate an increased rating.  In addition, the acting VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  Moreover, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim.  As such, the Board finds that the acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record.

Finally, the Board notes that this appeal was remanded in April 2012 and October 2012.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The development requested in those remands, to schedule a hearing and provide a VA examination, was completed.  Accordingly, the Board finds that it may proceed to adjudication of this appeal.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).

II.  Service Connection 

Pertinent VA law provides that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent.  38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. 
§ 3.307(a)(6)(iii) (2013).  Service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. 
§§ 3.307(a)(6)(iii), 3.313(a).

Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents.  Those diseases that are listed at 38 C.F.R. § 3.309(e) (to include diabetes mellitus, type II) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service.  

The Veteran had three years and four months of documented overseas military duty.  His regular duty assignment as documented was at Kadena Air Force Base (AFB), Okinawa, Japan.  According to the Veteran, he had at least one temporary duty assignment (TDY) that required him to be sent to Vietnam in either December 1964 or January 1965 in DaNang for two to three days.  The Veteran also contends that while stationed in Okinawa he performed routine maintenance on all types of military aircraft involved in the Vietnam conflict, requiring him to perform tasks such as checking air intakes and jet engines.  By the Veteran's account, he was regularly exposed to large drums being transported to and from Vietnam that were often leaking an oily substance (presumably Agent Orange).

Furthermore, the Veteran indicates that he had several temporary assignments to Thailand, sometimes for a month at a time.  He indicates having been sent to Korat Royal Thai Air Force Base often for additional military aircraft maintenance duties, where he again worked upon aircraft that were observed to carry Agent Orange containers.  According to the Veteran, while working on the flight line he was stationed at the air field, in close proximity to the base perimeter where Agent Orange was known to be sprayed as a defoliant. 

There is no evidence in the claims file of any decorations which would serve to show that the Veteran ever set foot in Vietnam.  His DD 214 shows receipt of the Armed Forces Expeditionary Medal (AFEM).  (The Board notes that this award was issued to personnel serving offshore from Vietnam from July 1, 1958 to July 3, 1965).  As such, this medal does not verify service on the landmass of Vietnam or inland waterways. 

The DD-214 also reflects service in the Air Force with the military occupational specialty (MOS) of instrument repairman for the 18th Armament and Electronics Maintenance Squadron.  As indicated, the Veteran's place of assignment is listed as Kadena AFB, Okinawa.  There is no mention of any TDY or alternate duty assignment.  

VA has attempted to verify the Veteran's account through the service department and other Department of Defense agencies.  Communication with the Defense Finance and Accounting Service (DFAS) resulted in a determination that there were no records available for the Veteran.  A September 2013 response from the United States Army and Joint Services Records Research Center (JSRRC) indicated that they were unable to confirm whether personnel assigned to the Veteran's unit were assigned TDY to Vietnam or Thailand from August to December 1964.  However, it was reported that six missions to DaNang were performed in December 1964 for the purpose of testing the ability of that base to support F-105 aircraft. 

The Board notes that the Veteran is competent to report what he experienced during service.  For example, he is competent to state that he went on TDY to DaNang in 1964 or 1965.  The Board finds no reason to doubt the Veteran's credibility in making such statements.  

In addition to the Veteran's own competent and credible statements regarding his Vietnam service, the record contains a lay statement from a fellow former serviceman who knew the Veteran at the time of his active duty.  R.H. wrote that he was assigned to TDY to Vietnam for more than a week, and that the Veteran was "definitely there."  Specifically, he remembered walking to the Commander's Call with the Veteran the morning after their arrival in DaNang.  R.H. submitted his TDY orders, which indicate that the 18th Armament and Electronics Maintenance Squadron went to DaNang, Vietnam on February 1, 1965 for the purpose of performing aircraft maintenance.

The Board ultimately affords great probative value to R.H.'s statement and personnel record, which effectively corroborate the Veteran's allegations of a TDY to DaNang.  The Board finds that the November 2012 statement, particularly when viewed in the context of other information provided by the Veteran and the JSRRC response, is sufficient to establish a reasonable likelihood of service in Vietnam.  

Accordingly, the Veteran is entitled to a presumption of exposure to herbicides while in the Republic of Vietnam.  As type 2 diabetes is a disease subject to presumptive service connection as based on such an exposure, service connection is  granted.  See 38 C.F.R. §§ 3.307, 3.309. 

Since the Board has herein conceded exposure to Agent Orange for the reasons described above, there is no need to address the Veteran's alternative allegations that he was exposed to herbicides based on his duties that reportedly required him to travel to Thailand.

III.  Increased Rating

Hearing impairment is evaluated under 38 C.F.R. § 4.85, and is determined by comparing the results of controlled speech discrimination tests with the average hearing threshold level.  The hearing threshold levels are measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz (cycles per second).  The Rating Schedule allows for such audiometric test results to be translated into a numeric designation, which range from Level I for essentially normal acuity to Level XI for profound deafness.  Based on the level of hearing impairment, a percentage evaluation is assigned to determine the level of compensation, ranging from noncompensable to 100 percent.  Disability ratings for hearing impairment are derived by the mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The exceptional patterns of hearing impairment apply when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  See 38 C.F.R. § 4.86. 

At a November 2008 VA audiology examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
25
20
70
70
LEFT
20
15
20
60
80

Speech audiometry revealed speech recognition ability of 96 percent in both ears.

Also of record is a June 2009 private audiogram, but it depicts the pure tone thresholds exhibited by the Veteran on a graph that has not been interpreted in decibels for each frequency depicted in the audiogram.  However, the results appear to be similar to those obtained in November 2008.
At an April 2013 VA audiology examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
20
65
55
LEFT
15
15
25
60
80

Speech audiometry revealed speech recognition ability of 96 percent in both ears.

The November 2008 findings show that Table VI provides for a numeral of Level I for the Veteran's right ear and Level I for his left ear.  Applying those results to 38 C.F.R. § 4.85, Table VII, a 0 percent evaluation is derived.  Accordingly, the November 2008 audiometric results do not serve as a basis for a compensable evaluation.  The April 2013 findings show that Table VI provides for a numeral of Level I for the Veteran's right ear and Level I for his left ear.  Applying those results to 38 C.F.R. § 4.85, Table VII, a 0 percent evaluation is derived.  Neither audiogram reflects an exceptional hearing impairment pattern.  See 38 C.F.R. 
§ 4.86.  Accordingly, the November 2008 and April 2013 audiometric results do not serve as a basis for a compensable evaluation for the Veteran's service-connected bilateral hearing loss at any time during the appeal period.  Therefore, any application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Consideration has also been given regarding whether the schedular evaluation is  inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

The schedular evaluation in this case is adequate.  Ratings in excess of that assigned are provided for certain manifestations of the service-connected disorder, but the medical evidence reflects that those manifestations are not present in this case.  The Veteran's symptoms, including difficulty hearing speech, are contemplated in the rating assigned.  He has not required hospitalization due to this service-connected disability.  There is no objective evidence that his hearing loss has resulted in a marked level interference with his capacity for employment.  In fact, during the April 2013 VA examination, the Veteran denied any impact on his ability to work.  Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required.
 
Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an initial compensable evaluation for the Veteran's bilateral hearing loss for the entire appeal period.  There is no doubt to be resolved.


ORDER

Entitlement to service connection for diabetes mellitus, type II, due to exposure to Agent Orange, is granted.

Entitlement to an initial compensable evaluation for bilateral hearing loss is denied.


____________________________________________
THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs