Citation Nr: 1334780	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  10-16 153	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an increased rating for chronic bronchitis, currently rated as 10 percent disabling.

2.  Entitlement to a compensable rating for bilateral hearing loss prior to November 16, 2011.

3.  Entitlement to greater than a 10 percent rating for bilateral hearing loss beginning November 16, 2011.

4.  Entailment to an initial compensable rating for left ear tympanic membrane perforation.

5.  Entitlement to service connection for right ear tympanic membrane perforation.


REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel


INTRODUCTION

The Veteran served on active duty from January 1959 to July 1962.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and March 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  


FINDINGS OF FACT

1.  The Veteran's bronchitis is manifested by Forced Expiratory Volume in one second (FEV-1) of 94 percent of predicted at worst, FEV-1/Forced Vital Capacity (FVC) of 76 percent of predicted at worst, and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 69 percent of predicted at worst.  

2.  Prior to November 16, 2011, the Veteran's bilateral hearing loss was manifested by Level II hearing in each the right ear and the left ear.

3.  Beginning November 16, 2011, the Veteran's bilateral hearing loss is manifested by Level IV hearing in the right ear and Level V hearing in the left ear.

4.  The Veteran's left ear tympanic membrane is manifested by clinical evidence of a healed tympanic membrane perforation.

5.  The evidence as to the relationship between the Veteran's right ear tympanic membrane perforation and his military service is in equipoise.

CONCLUSIONS OF LAW

1.  The criteria for an increased rating for chronic bronchitis have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6600 (2013).

2.  The criteria for a compensable rating for bilateral hearing loss prior to November 16, 2011 have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013).

3.  The criteria for greater than 10 percent rating for bilateral hearing loss beginning November 16, 2011 have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013).

4.  The criteria for an initial compensable rating for left ear tympanic membrane perforation have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6211 (2013).

5.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for right ear tympanic membrane perforation are met.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).  A July 2007 letter satisfied VA's duty to notify, to include informing him of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records and VA treatment records have been obtained; the Veteran has not identified any private treatment records pertinent to his appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  

VA examinations conducted in December 2007, January 2008, November 2011, December 2011, and March 2012 were adequate for rating purposes; these examinations evaluated the nature, extent and severity of his service-connected disabilities, by conducting complete physical examinations, recording the Veteran's subjective complaints, and offering opinions as appropriate.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The November 2011 VA examiner elicited from the Veteran comments concerning his situations of greatest hearing difficulty, which the Veteran identified as including speaking to receptionists and others in doctors' offices, using the telephone, and applying for a job interview, all of which are difficult because he either has to ask for the person speaking to repeat themselves, or misunderstands what the person is saying.  He also reported on the effect of his hearing loss on his daily life, to including having his wife tell him the television was too loud and to turn it down, but without the volume raised he could not comprehend what was going on during the television program, and generally being embarrassed about his limited hearing acuity.  The audiology examiners also conducted complete audiograms and word recognition testing.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).

Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Increased Rating Claims

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31 (2013).

The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Bronchitis

The Veteran's service-connected chronic bronchitis is rated 10 percent disabling pursuant to Diagnostic Code 6600.  Pulmonary function tests (PFTs) are required to evaluate a disability under Diagnostic Code 6600, unless (i) the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less, (ii) pulmonary hypertension, cor pulmonale, or right ventricular hypertrophy has been diagnosed, (iii) there have been one or more episodes of acute respiratory failure, or (iv) outpatient oxygen therapy is required.  See 38 C.F.R. § 4.96(d) (1) (2013). When evaluating a disability based on PFTs, post-bronchodilator results are used, unless the post-bronchodilator were poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator results are used to determine the disability rating.  See 38 C.F.R. § 4.96(d) (5) (2013). 

Under Diagnostic Code 6600, a 10 percent rating is assigned for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted, or; FEV-1/Forced Vital Capacity (FVC) of 71 to 80 percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 66- to 80-percent predicted.  See 38 C.F.R. § 4.97, Diagnostic Code 6600 (2013).  A 30 percent rating is assigned for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted.  Id.  

The evidence of record does not support greater than a 10 percent rating for the Veteran's chronic bronchitis.  At the December 2007 VA examination, FEV-1 was 105 percent of predicted, FEV-1/FVC was 76 percent of predicted, and DLCO was 103 percent of predicted.  At the December 2011 VA examination, FEV-1 was 94 percent of predicted, FEV-1/FVC was 100 percent of predicted, and DLCO was 69 percent of predicted.  Cor pulmonale or pulmonary hypertension were also not found on examination.  These clinical results do not establish entitlement to greater than a 10 percent rating.  Accordingly, the preponderance of the evidence is against entitlement to a higher schedular rating throughout the appeal.  

Hearing Loss

Evaluations of 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 as measured by puretone audiometric tests.  To evaluate the degree of disability resulting from service-connected hearing loss, the Schedule establishes eleven levels of impaired efficiency, numerically designated from Level I to Level XI.  Level I represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI.  38 C.F.R. § 4.85, Tables VI, VII (2013).  The February 2008 rating decision granted service connection for left ear hearing loss and assigned a noncompensable rating; the March 2012 rating decision granted service connected hearing loss and, together with the left ear hearing loss, established a noncompensable rating prior to November 16, 2011, and a 10 percent rating thereafter.

At the January 2008 VA examination, speech audiometry revealed speech recognition ability of 98 percent in the right ear, and 100 percent in the left ear; puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
55
50
50
75
75
LEFT
55
55
50
60
70

At the November 2011 VA examination, speech audiometry revealed speech recognition ability of 86 percent in the right ear and 80 percent in the left ear; puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
55
50
75
80
LEFT
60
65
60
60
70

At the March 2012 VA examination, speech audiometry revealed speech recognition ability of 80 percent in the right ear and 86 percent in the left ear; puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
55
50
75
80
LEFT
60
65
60
60
70

Applying the rating criteria results in a Level II hearing acuity for both ears based on the January 2008 VA examination findings.  See 38 C.F.R. § 4.85, Table VI.  Applying these numeral designations to Table VII results in a noncompensable rating for bilateral hearing impairment prior to November 16, 2011.  38 C.F.R. §§ 3.385, 4.85(f), (h).  A compensable rating prior to November 16, 2011 is not supported by the evidence of record.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Similarly, applying the rating criteria from the November 2011 and March 2012 VA examinations results in Level III hearing acuity for the left ear, and a Level IV hearing acuity for the right ear.  Id.  Applying these numeral designations to Table VII results in a 10 percent rating for bilateral hearing impairment beginning November 16, 2011.  38 C.F.R. §§ 3.385, 4.85(f), (h).  

When the puretone decibel loss values are 55 or greater at 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz in either ear, the criteria for exceptional patterns of hearing impairment must be considered.  38 C.F.R. § 4.86(a) (2013).  The puretone decibel loss results from the November 2011 and March 2012 constitute an exceptional pattern of hearing impairment for the left ear; as such, the criteria in 38 C.F.R. § 4.86(a) applies.  Applying the clinical findings from these examinations to Table Via results in numeral designations of Level V for the left ear for both the November 2011 and March 2012 VA examinations.  However, using the Level V designation in conjunction with the Level IV designation for the right ear also results in a 10 percent rating for bilateral hearing loss beginning November 16, 2011.  The preponderance of the evidence is against the claim.  There is no doubt to be resolved, and a compensable rating prior to November 16, 2011, or greater than a 10 percent rating beginning November 16, 2011, for bilateral hearing loss is not warranted.  See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56.

Left Ear Tympanic Membrane

The March 2008 rating decision granted service connection for left ear tympanic membrane perforation and assigned a noncompensable rating pursuant to Diagnostic Code 6211.  38 C.F.R. § 4.87, Diagnostic Code 6211.  The sole rating available under Diagnostic Code 6211 is a noncompensable rating; therefore, the currently assigned rating is the maximum schedular rating available under Diagnostic Code 6211.  An October 2000 VA treatment record show that the left ear had a 20 percent perforation.  The January 2008, November 2011, and March 2012 VA examinations also noted healed left ear tympanic membrane perforations.  However, a noncompensable rating is warranted whether the service-connected perforation is active, or clinically identifiable, or present only as residual scarring.  Consequently, a compensable rating cannot be granted under this diagnostic code, as the maximum rating has already been assigned.  See, e.g., AB v. Brown, 6 Vet. App. 35, 38 (1993).  

Extraschedular Consideration

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board finds that the rating criteria contemplate the Veteran's bronchitis, hearing loss, and tympanic membrane perforation disabilities; the manifestations documented by the record are contemplated in the rating criteria, and the Veteran has not suggested that he experiences symptomatology that is both related to the service-connected disabilities but not addressed in the rating criteria.  Moreover, as to his bilateral hearing loss, the VA audiologist fully described the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The rating criteria are therefore adequate to evaluate the Veteran's service-connected disabilities; referral for consideration of extraschedular ratings is not warranted.

Service Connection Claim

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions).  

The Veteran's service treatment records do not show a right ear perforated tympanic membrane.  However, they do show that a October 1960 sick call record noted draining of the right ear, and a December 1960 record noted that the Veteran had continued to complaint of persistent right ear pain.  While the April 1962 Medical Board report noted only a left ear tympanic membrane perforation, the January 1963 VA examination report, conducted shortly after the Veteran's separation from service indicated that the right ear tympanic membrane was dull and thickened.  Thus, while it appears that no right ear tympanic membrane perforation occurred during service, it is clear that the right ear canal was repeatedly subject to episodes of acute symptomatology.  To that end, the January 2008 VA ear disease examiner found on physical examination that the Veteran's right ear tympanic membrane was 70 percent perforated, and concluded that the right ear tympanic membrane perforation had occurred during the Veteran's military service between 1959 and 1962.

After review of this evidence, the Board finds that the evidence as to whether the Veteran's right ear tympanic membrane perforation is related to his military service is in equipoise.  Although a right ear tympanic membrane perforation is not documented in the service treatment records, the January 2008 VA examiner's opinion tends to suggest that there is still a relationship between that condition and the Veteran's military service; indeed, it appears to find that the abnormal clinical processes of the right ear documented in the service treatment records were the onset of a chronic condition that ultimately led to the right ear tympanic membrane perforation.  As noted above, multiple service treatment records showing right ear pathology support such a finding.  While it is beyond the purview of the Board to make its own medical determinations, Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), it finds that the VA examiner's opinion puts the evidence of record into equipoise.  

In light of the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for right ear tympanic membrane perforation is warranted.





ORDER

An increased rating for chronic bronchitis is denied.

A compensable rating for bilateral hearing loss prior to November 16, 2011 is denied.

A rating in excess of 10 percent rating for bilateral hearing loss beginning November 16, 2011 is denied.

An initial compensable rating for left ear tympanic membrane perforation is denied.

Service connection for right ear tympanic membrane perforation is granted.





______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs