Citation Nr: 1340710	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  10-20 916	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to service connection for prostate cancer, to include as due to toxic chemical exposure.  

2. Entitlement to service connection for a respiratory disability, to include as due to toxic chemical exposure.  

3. Entitlement to service connection for sleep apnea, to include as due to toxic chemical exposure. 

4. Entitlement to a compensable rating for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel


INTRODUCTION

The Veteran served on active duty from November 1966 to November 1968.

This matter is before the Board from rating decisions in October 2008 and August 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, and a rating decision in January 2010 by the RO in Muskogee, Oklahoma.  Jurisdiction over the appeal is with the RO in Houston, Texas.  

The Veteran testified before the undersigned Veterans Law Judge in January 2013.  A transcript of the hearing is of record.

The issue of entitlement to service connection for sleep apnea is REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDINGS OF FACT

1.  The Veteran's hearing loss has been manifested by no more than Level I hearing impairment in either ear.

2.  Prostate cancer was not shown in service or for many years thereafter, and is unrelated to active duty service.

3.  A chronic respiratory disability is not currently shown.  


CONCLUSIONS OF LAW

1.  The criteria for the assignment of a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.85, 4.86, DC 6100 (2013).

2.  Prostate cancer was not incurred in or aggravated by service, and is not related to service.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013).

3.  A respiratory disability was not incurred in or aggravated by service, is not related to service, and is not currently shown.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability.  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board.  Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The duty to notify was satisfied by letters sent to the Veteran in September and December 2008 and January 2009 that fully addressed all notice elements.  

The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  They also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date.  Therefore, adequate notice was provided to the Veteran.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013).  

Next, VA has a duty to assist a Veteran in the development of a claim.  That duty includes assisting in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO obtained the Veteran's service medical records and VA outpatient treatment records.  Further, the Veteran submitted additional treatment records and his own statements in support of his claim.  

VA examinations with respect to the Veteran's hearing loss and respiratory disability were obtained in October 2008, and in July and September 2012.  38 C.F.R. § 3.159(c)(4) (2013).  When VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board finds that the VA examinations obtained in this case are adequate.  They were predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated.  

The Board acknowledges that a VA medical opinion was not obtained regarding the Veteran's prostate cancer claim.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013).

A VA medical examination is not required as a matter of course in virtually every case involving a nexus issue.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  The Board finds that the Veteran's prostate disorder was not shown in service or within one year of service, and there is insufficient evidence of record for the Board to reasonably conclude that the evidence indicates might be related to any chemical exposure during active duty.  Without such evidence, a VA examiner would be substantially unable to provide a meaningful opinion.  

Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).




Service Connection

The Veteran is claiming entitlement to service connection for a respiratory disorder and prostate cancer, both of which he asserts are due exposure to various chemicals such as mustard gas, chlorine and tear gas.  In an October 2004 statement, he specifically asserted that his duties as a chemical staff specialist in the Army required him to be exposed to a number of chemical agents, such as lengthy periods in a tear gas chamber as well as the manufacture of napalm.  

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Generally, the evidence must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995).

In some cases, service incurrence and a relationship to service may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders.  38 C.F.R. § 3.303(b) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488 (1997).  

However, service connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be chronic under 38 C.F.R. § 3.309(a).  Prostate cancer (as a malignant tumor) is considered a chronic disease under 38 C.F.R. § 3.309(a).  Respiratory disorders are not.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a).  Service connection will also be presumed for chronic diseases, including prostate cancer, if manifest to a compensable degree within one year after separation from service.  38 C.F.R. §§ 3.307, 3.309 (2013). 

Service connection may only be granted for a current disability.  When a claimed disability is not shown, there may be no grant of service connection.  Congress specifically limits entitlement for service-connected disease or injury to cases where the disease or injury has resulted in a disability.  38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).

For claims involving claimed exposure to mustard gas, the Veteran must provide evidence of in-service exposure, and a diagnosis of current presumptive disability, but is relieved of the burden of providing medical evidence of a nexus between the current disability and his in-service exposure.  Rather, that nexus is presumed if the other conditions are met and there is not affirmative evidence to rebut that presumption, such as willful misconduct or an intervening event.  38 C.F.R. § 3.316 (2013); Pearlman v. West, 11 Vet. App. 443 (1998).

The presumptive diseases resulting from full-body exposure to nitrogen or sulfur mustard during service include chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: nasopharyngeal, laryngeal, lung (except mesothelioma), or squamous cell carcinoma of the skin.  The presumptive diseases resulting from full-body exposure to nitrogen, sulfur mustard or Lewisite during service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease.  The presumptive diseases resulting from full-body exposure to nitrogen mustard during service together with the subsequent development of acute non-lymphocytic leukemia.  38 C.F.R. § 3.316 (2013).

VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits.  38 U.S.C.A. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

As it is his primary contention, the Board addresses the nature of the Veteran's exposure to chemical gases.  In this case, he has asserted exposure to a wide variety of chemicals, to include mustard gas (sometimes identified as H, HD, or HS), chlorine gas, and tear gas (identified as CS gas or CN gas).  He has also submitted a number of documents describing the health effects of some nerve agents, and most typically mustard and sarin gas.  The Board also notes that the Veteran's active duty specialty was as a chemical staff specialist in the Army Chemical Corps.  Therefore, it may be conceded that he was exposed to various types of tear gas that were commonly used in a variety of training evolutions.  

However, despite the Veteran's unit affiliation, the Board concludes that there is insufficient evidence to concede that he was exposed to the significantly more dangerous chemicals such as any type of mustard gas or sarin.  While VA has recognized that active duty units had been historically exposed to those chemicals in combat during World War I and in experimental situations in World War II, there is no evidence to suggest that such agents were used after that time.  Indeed, when 38 C.F.R. § 3.316 was created in 1992, there was no discussion of exposure to such chemicals by veterans of the Vietnam Era, despite the fact that the Vietnam War had already been over for approximately 20 years.  57 Fed. Reg. 1699 (January 15, 1992); 57 Fed. Reg. 33876 (July 31, 1992).  

Additionally, a review of the Department of Defense test participant database in December 2009 did not indicate that the Veteran had participated in any mustard gas testing, or any of the more recent chemical and biological weapon experiments.  Therefore, although the Board has recognized the Veteran's assertions, they are outweighed by the other evidence of record which does not show that he was a participant in any testing with the substances to which he claims to have been exposed.  Therefore, exposure to mustard gas or any similar chemicals is not conceded, and the provisions of 38 C.F.R. § 3.316 (2013) are inapplicable.  

Having determined the nature of the Veteran's chemical exposure, the Board determines that service connection is not warranted for either claimed disability.  First, the service medical records that are available do not show complaints of, treatment for, or a diagnosis related to any respiratory disability or genitourinary disability while in service.  Significantly, the Veteran's separation physical examination in October 1968 did not document any complaints of or observed symptoms related either a genitourinary or respiratory disability.  

The post-service evidence does not show symptoms related to a genitourinary disability of any sort until he was diagnosed with prostate cancer in September 2008, approximately 40 years after he left active duty.  The Veteran has not asserted that he has experienced a genitourinary disability continuously since active duty.   Therefore, continuity of symptoms related to prostate cancer is not established, based on the clinical evidence of record or the Veteran's statements.  The Board also notes that the first diagnosis of prostate cancer was well in excess of one year after service.  Therefore, presumptive service connection is also not warranted.  38 C.F.R. §§ 3.307, 3.309 (2013).  

With regard to his complaints of respiratory symptoms, the Veteran stated at his hearing before the Board in January 2013 that he began to experience coughing fits in approximately 1971.  However, the evidence does not establish the presence of an underlying respiratory disorder.  Significantly, when he underwent a VA examination in September 2012, he recalled being exposed to airborne chemicals while in service and that he had experienced a dry cough for many years since then.  The examiner also noted that he was prescribed an inhaler for use as needed following a pulmonary functioning test (PFT) in April 2012, which indicated no obstruction and some mild restriction.

However, despite those mentioned symptoms, an actual respiratory disability was not identifiable.  A chest X-ray revealed clear lungs that were well expanded, and there was no evidence of acute pulmonary disease.  Moreover, a PFT performed in September 2012 did not indicate any abnormality.  Therefore, the examiner concluded that no chronic respiratory disability was currently observed.  

The Board finds that examination was adequate for evaluation purposes.  Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination.  There is no indication that the examiner was not fully aware of the Veteran's past medical history or that the examiner misstated any relevant fact.  

The Veteran was prescribed an inhaler by a different physician based on a PFT in April 2012.  However, the evidence does not show that an actual chronic respiratory disability was diagnosed at that time.  The VA examiner noted that findings at that time were substantially normal except for some mild restriction.  Therefore, the Board relies on the more thorough findings of the VA examiner that a current chronic respiratory disorder is not shown.  Significantly, the examiner was able to review the Veteran's entire medical history, which provided the examiner with a better basis to identify the appropriate diagnosis, if any, or find that a diagnosis of a respiratory disability was not warranted.

The Board notes that a disability need only be manifest at some point during the pendency of that claim, even if no disability is present at the time of the claim adjudication.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  However, this is not the situation here, where the Veteran had a legitimate prior diagnosis that has since resolved.  Rather, the VA examiner reviewed the same information as the previous physician and found that a diagnosis of a respiratory disability was not warranted.  The Board finds that examiner's opinion highly persuasive.

Therefore, although the Veteran has complained of coughing episodes, the evidence does not show that he has a respiratory disability that may be considered a disability for VA purposes.  Moreover, the mere assertion of symptoms alone cannot be compensable without an in-service disease or injury to which any asserted symptoms can be connected by competent evidence.  Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001).

Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints.  In this case, in addition to the fact that a chronic respiratory disability is not currently shown, the Board finds that the weight of the competent evidence does not attribute the Veteran's prostate cancer to active duty, despite his contentions to the contrary.  Specifically, there is no competent evidence of record that relates his prostate cancer to chemical exposure or to any other incident during active duty service.  In addition to the absence of any competent evidence supporting his contention that such a relationship exists, the Veteran has not submitted any medical research or literature, or any competent medical opinion, indicating a relationship between prostate cancer and tear gas exposure.  

When considering these claims, the Board has also considered the statements made by the Veteran relating his respiratory disability and prostate cancer to his active service, and specifically to chemical exposure.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

While the Veteran is competent to discuss the types of chemicals he was exposed to, he is not competent to provide testimony regarding the etiology of his prostate cancer and any sort of respiratory disorder.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Because these disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make.  Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's respiratory disorder or prostate cancer are found to lack competency.

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved.  Therefore, the appeal is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Increased Ratings

Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1 (2013).  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  However, the Board has been directed to consider only those factors contained wholly in the rating criteria.   Massey v. Brown, 7 Vet. App. 204 (1994).

Where there is a question as to which of two separate ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013).

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.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings is warranted.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rating the extent of hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Hearing loss disability rating range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, and as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85 (2013).

The rating schedule for hearing loss establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometric test.  The horizontal lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss.  38 C.F.R. § 4.85 (2013).

The percentage disability rating is found from Table VII by intersecting the horizontal column appropriate for the numeric designation for the ear having the better hearing acuity and the vertical row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of V and the poorer ear has a numeric designation Level of VII, the rating is 30 percent.  38 C.F.R. §§ 4.85(b), 4.87 (2013). 

When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a) (2013).  When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b) (2013).

The Veteran is service-connected for bilateral hearing loss with a 0 percent rating.  In September 2008, he filed a claim seeking an increased rating, asserting that his hearing had become worse.  

At an October 2008 VA examination, the Veteran told the examiner that he continued to experience difficulty hearing and understanding sounds.  He also underwent an audiometric examination that represented, in the examiner's opinion, mild to severe high frequency hearing loss.  The pure tone thresholds from the audiometric examination, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
25
35
75
40
LEFT
15
30
70
80
49

Speech audiometry revealed speech recognition ability of 92 percent bilaterally.  Based on the evidence above, Table VI of 38 C.F.R. § 4.85 shows the Veteran's hearing loss to be Level I impairment in both ears.  An exceptional pattern of hearing loss his not shown.  Therefore, according to Table VII, a noncompensable rating is warranted.  38 C.F.R. § 4.85 (2013).

At a July 2012 VA examination, the Veteran stated that his hearing loss impacted his ability to work because he had difficulty understanding people over the telephone and when there was background noise.  That was particularly problematic in his role as an automobile technician.  After an audiometric evaluation was performed, the examiner diagnosed sensorineural hearing loss.  The pure tone thresholds from the audiometric examination, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
15
15
30
65
31
LEFT
10
20
60
75
41

Speech audiometry revealed speech recognition ability of 96 percent bilaterally.  Based on the evidence above, Table VI of 38 C.F.R. § 4.85 shows the Veteran's hearing loss to be Level I impairment in both ears.  An exceptional pattern of hearing loss his not shown.  Therefore, according to Table VII, a 0 percent rating is warranted.  38 C.F.R. § 4.85 (2013).

The evidence of record also includes an audiometric evaluation from June 2008 which shows hearing loss that is significantly more severe than the results from either VA examination.  However, the evaluating audiologist stated that the results of that test were not adequate for rating purposes, as the word recognition scores were inconsistent with peripheral hearing loss.  Because the results of that evaluation have been deemed unreliable by the examiner who conducted the examination, it is not considered for purposes of this adjudication.  

In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his hearing loss disability is worse than the rating he currently receives.  In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact.  Weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994).  Although interest may affect the credibility of testimony, it does not affect competency to testify.  Cartright v. Derwinski, 2 Vet. App. 24 (1991).  The Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, he is not competent to identify a specific level of disability due to hearing loss according to the appropriate diagnostic codes.

Competent evidence concerning the nature and extent of the Veteran's hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have provided opinions in conjunction with the evaluations.  The medical findings provided in the examination reports directly address the criteria under which hearing loss rated.

The Board also determines that referral for an extraschedular rating is not warranted.  Although the Board may not assign an extraschedular rating in the first instance, the Board must adjudicate whether to refer a case for extraschedular rating when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

When considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology.  If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of the assignment of an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111 (2008).  

The Board finds that the evidence does not show that Veteran's disability picture is not adequately contemplated by the applicable schedular rating criteria.  After reviewing the impact of his hearing loss on his work and personal life, the Board concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes.  Mittleider v. West, 11 Vet. App. 181 (1998).  The Veteran's symptoms are not which are so unusual that they are outside the schedular criteria.  Higher ratings are available for more severe symptomatology, which is not shown.

Because the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted.  However, the evidence does not show frequent hospitalization due to hearing loss.  Furthermore, while the Veteran claims difficulty hearing at work, the Board finds that difficulty does not result in marked interference with employment.  Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability due specifically to his service-connected disabilities.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

Accordingly, the Board finds that an increased rating for the Veteran's hearing loss is not warranted for any period on appeal.  The preponderance of the evidence is against the assignment of any higher rating.  Therefore, the appeal is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for prostate cancer, to include as due to toxic chemical exposure, is denied.  

Service connection for a respiratory disability, to include as due to toxic chemical exposure, is denied.  

A compensable rating for bilateral hearing loss is denied.  


REMAND

The Board notes that an August 2011 rating decision denied service connection for sleep apnea.  In September 2011 the Veteran submitted a timely notice of disagreement to that denial.  As the Veteran has submitted a timely notice of disagreement, the Board must remand the case for issuance of a statement of the case.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case on the issue of entitlement to service connection for sleep apnea.  Notify the Veteran of his appeal rights and that he must file a timely substantive appeal if he desires to perfect an appeal on the issue.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs