Citation Nr: 1340900	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  09-41 455	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for a heart disorder.

2.  Entitlement to a disability rating greater than 10 percent for bilateral sensorineural hearing loss from October 18, 2006, and greater than 20 percent from July 7, 2011.

3.  Entitlement to a disability rating greater than 10 percent for bilateral conjunctivitis.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

D. Orfanoudis, Counsel


INTRODUCTION

The Veteran had active service from April 1956 to March 1961 and from May 1961 to June 1976, to include a tour of duty in the Republic of Vietnam.  His decorations include the Bronze Star Medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from 
rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, the Commonwealth of Puerto Rico.

In April 2013, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO.  A transcript of that hearing has been associated with his claims file.  The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the above hearing, the undersigned clarified the issues on appeal and inquired as to the etiology, continuity, and severity of the Veteran's asserted symptoms.  The Veteran was offered an opportunity to ask the undersigned questions regarding his claim.  The Board, therefore, concludes that it has fulfilled its duty under Bryant. 

This matter was previously before the Board in August 2013 at which time it was remanded for additional development.  It is now returned to the Board.  As will be discussed further herein, with regard to the issues being decided herein, the Board finds that the agency of original jurisdiction substantially complied with the remand orders and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board notes that the issues on appeal had previously included service connection for erectile dysfunction.  However, during the pendency of this appeal, by rating action dated in October 2013, service connection for erectile dysfunction was granted.  As this represents a complete grant of the benefit sought on appeal, the issue is no longer before the Board.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that an Informal Hearing Presentation dated in November 2013 has been submitted on behalf of the Veteran by his representative.  This has been considered by the Board in adjudicating this matter.  The remaining documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 

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).

The issue of a disability rating greater than 10 percent for bilateral conjunctivitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  A heart disorder was not manifested during service, was not diagnosed within the first post-service year, is not otherwise related to active service or to a service-connected disability; and the Veteran does have ischemic heart disease.

2.  From the date of the Veteran's claim for an increased disability rating, the Veteran's puretone threshold averages have generally ranged from 64 to 70 in each ear, demonstrating exception patterns of hearing impairment meeting the criteria for a 20 percent disability rating.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a heart disorder have not been met.  38 U.S.C.A. §§ 1112, 1110, 1131, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013).

2.  The criteria for a 20 percent disability rating for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.87, Tables VI, VIA, VII, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).
VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005).
 In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

By letters dated in October 2006, March 2008, July 2008, December 2008, February 2009, December 2009, January 2011, and April 2013 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims.  He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain.  He was also provided with the requisite notice with respect to the Dingess requirements.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied.

Concerning the increased-compensation claim, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice  regarding how disability ratings and effective dates are assigned.  See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007).

In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO.  Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life.  The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation.  The Veteran was also provided notice of the applicable relevant diagnostic code provisions.  

Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The Veteran's relevant service, VA, and private medical treatment records have been obtained.  There is no indication of any additional, relevant records that the RO failed to obtain.

The Board further observes that this case was remanded in August 2013 in order to obtain outstanding VA treatment records, afford the Veteran a VA examination so as to assess the etiology of his heart disorder, and to have the agency of original jurisdiction consider additional evidence in the first instance in readjudicating the issues.  Thereafter, additional VA treatment records dated through September 2013 were associated with the claims file, the Veteran was afforded an appropriate VA examination in September 2013, and the agency of original jurisdiction reconsidered all the issues in a Supplemental Statement of the Case dated in October 2013.  Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the August 2013 remand directives such that no further action is necessary in this regard.  See D'Aries, supra. 

In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. 

Service connection

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).
In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Service connection for certain chronic diseases, to include cardiovascular-renal disease, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2013).   Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995).  VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation.  38 C.F.R. § 3.310(b). 

Diseases associated with exposure to certain herbicide agents used in support of 
military operations in the Republic of Vietnam during the Vietnam era also will be presumed to have been incurred in service.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease.  38 C.F.R. § 3.307(a)(6)(ii).  Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  "Service in the Republic of Vietnam" includes service in the waters offshore and 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).  Ischemic heart disease is listed among the diseases associated with herbicide exposure for purposes of this presumption.

The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the National Academy of Sciences (NAS), has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41, 442-449, and 61 Fed. Reg. 57, 586-589 (1996); Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42, 600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32, 395-407 (June 12, 2007). 

However, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established on a direct basis.  Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994).  See, also, McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). 

The Board must assess the credibility and weight of all the evidence, including the 
medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

During his April 2013 hearing, the Veteran asserted that service connection is warranted for a heart disorder, to include as due to Agent Orange exposure.  He indicated that in July 2010, he had been hospitalized for the implantation of a pace maker.  He added that prior to this, he had never been hospitalized for a heart disorder.  He also reported having undergone a cardiac catheterization in 2010, and an electrocardiogram, but that he had not had any other problems with his heart.  

A review of the Veteran's service treatment records reveals that there is no evidence of treatment for a heart disorder during his period of active service.

Following service, a VA examination report dated in May 1977 shows that clinical evaluation of the cardiovascular system was within normal limits.

A VA outpatient treatment records dated in February 2006 shows that the Veteran was noted to have hypertension, and that he had undergone a stress test in April 2005 as a result of chest pain.  The findings were said to be normal, and it was noted that he had experienced no further episodes of chest pain.

VA outpatient treatment records dated in July 2010 show that the Veteran was hospitalized for symptoms associated with bradycardia, chronotropic incompetence, near syncope, and status post pacemaker placement.
A VA ischemic heart disease examination report dated in March 2011 shows that the Veteran underwent a myocardial perfusion study.  The examiner indicated that the Veteran did not have ischemic heart disease, and that the pacemaker implantation was not related to ischemic heart disease.

A VA heart examination report dated in September 2013 shows that the Veteran was diagnosed with sick sinus syndrome and an implanted cardiac pacemaker was noted.  The VA examiner noted that the Veteran reported that during 2008 to 2009, he began experiencing intermittent episodes of dizziness, lightheadness, angina, and shortness of breath.  He also had episodes of associated syncope and near syncope.    By 2010, he underwent multiple studies that revealed low heart rate, and the  cardiologist confirmed a diagnosis of sick sinus syndrome.  A pacemaker was implanted in July 2010, after which his symptoms improved and he has remained stable.  At present, he denied episodes of chest pain, palpitations or shortness of breath.  He reported riding a bicycle (about seven miles) at least three times weekly,
with good tolerance, and no cardiac symptoms.  He also reported a history of undergoing a cardiac catheterization and multiple stress tests with normal findings, and without evidence of ischemia.  He denied a history of coronary artery disease or ischemic heart disease.

The examiner indicated that the Veteran's heart conditions did not qualify within the generally accepted medical definition of ischemic heart disease.  The examiner explained that the Veteran's heart conditions were the result of age related wear and tear to the heart muscle, and beta blocker medications for hypertension.  The examiner also indicated that physical examination had revealed peripheral edema, at least as likely as not related to venous insufficiency and to the medication used for hypertension.  It was not related to, caused by, secondary to, nor aggravated by sick sinus syndrome, or any service-connected conditions.  The examiner explained that it was well-documented in medical literature that venous insufficiency and calcium channel blockers were common etiologic factors of peripheral edema.

The examiner also concluded that the Veteran's heart conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner explained that the Veteran did not have ischemic heart disease.  The medical records were silent for any diagnosis regarding coronary artery disease or ischemic heart disease.  The Veteran denied a history of coronary artery disease or ischemic heart disease.  Cardiac catheterization had revealed normal coronary arteries, and multiple stress tests (May 2005, June 2009, and September 2011) had been within normal limits, without evidence of ischemia.  The Veteran's sick sinus syndrome and permanent pacemaker placement were also said to not be caused or related to active service.  The claims file and medical records were silent for sick
sinus syndrome or any other heart disease, or hypertension during active service and within a year of separation from service.  The service treatment records were said to be negative for signs or symptoms suggestive of heart disease or hypertension, and the cardiovascular system was noted to be normal with normal vital signs, including blood pressures and heart rate.  The Veteran's heart disease (sick sinus syndrome) was diagnosed in 2010, and as per the Veteran's own statement, and his cardiac symptoms started around the years 2008 to 2009.  The examiner indicated that this was a gap of more than 30 years between separation from service and the onset of his heart disease.

The examiner also indicated that the claimed sick sinus syndrome was not caused or aggravated by a service-connected disability or any other disorder related to service.  
As per the medical records review, the Veteran's sick sinus syndrome was more likely than not related to age related wear and tear to the heart muscle, and the beta-blocker medications for chronic hypertension.  It was well known in medical  literature that these were two important causes that contributed to the development of sick sinus syndrome.  The examiner added that the Veteran's hypertension was not caused by, nor related to active service.  As per his own statements, his hypertension was said to have had its onset by 1986, and oral medication was started since then.  It is was said to be a gap of more than nine years after separation from service and the onset of hypertension.

At the outset, the Board recognizes that the Veteran was a Vietnam-era Veteran with service in Vietnam and as such, it is presumed that he was exposed to Agent Orange/herbicides in service.  In the case of such a Veteran, as noted above, service connection for certain specified diseases, to include ischemic heart disease, will be presumed if manifest to a compensable degree within specified periods after service.  However, the Board finds that preponderance of the medical evidence of record shows that the Veteran does not have ischemic heart disease.  Both VA examiners in March 2011 and September 2013 concluded that the Veteran did not meet the criteria for a diagnosis of ischemic heart disease.  There is no other medical evidence of record to suggest that the Veteran has ischemic heart disease, and the Veteran, himself, has indicated that he has never been diagnosed with ischemic heart disease.  As such, there is no basis for establishing service connection on a presumptive basis for ischemic heart disease based on the theory that it developed as a consequence of the Veteran's exposure to herbicides in service. 

The Board has also considered service connection for a heart disorder may be established on a direct basis, or a secondary to a service-connected disability.  In this regard, however, the Board finds that the preponderance of the evidence is against the Veteran's claim.

As noted above, the service treatment records are negative of any findings associated with a heart disorder.  Following service, there is a considerable gap between separation and the initial documented complaints related to a heart disorder.  The initial objective evidence of hypertension is said to be in 1986, and the initial reports of chest pain were not until 2005.  Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since service, may be considered as evidence against a claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Board finds probative the September 2013 opinion of the VA examiner that concluded the Veteran's heart conditions were less likely than not incurred in or caused by service or a service-connected disability.  This opinion is considered probative as it was definitive and unequivocal, fully informed of the pertinent factual premises, and supported by detailed rationale.  Accordingly, it is found to 
carry significant weight.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight.  See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).

In view of the absence of in-service findings of a heart disorder, coupled with the lengthy period following service without treatment, there is no evidence of continuity of symptomatology, and this weighs against the Veteran's claim.

The Board recognizes the Veteran's contentions that he has a heart disorder as a result of service, to include exposure to herbicides, and to include as secondary to a service-connected disability.  When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

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.  See Jandreau, 492 F.3d at 1377.

To the extent that the Veteran is able to observe the manifestation of a heart disorder, his opinion is outweighed by the competent medical evidence.  Simply stated, the Veteran's service treatment records (containing no competent medical evidence of a heart disorder) and post-service treatment records (showing no complaints, symptoms, findings or diagnoses associated with a heart disorder for several years, and no competent medical evidence linking the reported heart disorder to the Veteran's service) outweigh the Veteran's contentions. 
However, a heart disorder, to include ischemic heart disease, is not a disability subject to lay opinions as to diagnosis and etiology.  While some symptoms of such a disorder, such as chest pain, may be reported by a layperson, the diagnosis and etiology of the disorders require medical training.  The Veteran has not demonstrated that he possesses the requisite medical expertise to diagnose himself with such a disorder, nor does he have the medical expertise to provide an opinion regarding its etiology.  Thus, the Veteran's lay assertions as to the etiology of his heart disorder is not competent or sufficient in this instance.  See Jandreau, 492 F.3d at 1377.

Given that the preponderance of the evidence weighs against the Veteran's claim, for the Board to conclude that the Veteran has a heart disorder that was incurred during his active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility.  38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993).

As the weight of the competent and probative evidence is against a finding that the Veteran's claimed heart disorder is related to service, the preponderance of the evidence is against this service connection claim.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  See generally Gilbert, 1 Vet. App. at 53-56; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

Increased Disability Rating for Bilateral Hearing Loss

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  38 C.F.R. § 4.3.  If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  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 (2013).  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 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection 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).  Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. 4.6 (2013).  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2013).

It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses).

In rating hearing loss, disability ratings are derived from the mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Disability ratings of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz.  The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness.  An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a). 

Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect.  38 C.F.R. § 4.85(b).  The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment.  38 C.F.R. § 4.85(d).  Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the disability rating by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing.  The disability rating is located at the point where the rows and column intersect.  38 C.F.R. § 4.85(e). 

VA regulations also provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.

The Board notes that in Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Court) held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) requires any subsequent decision to relate back to the original claim.  Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).  A review of the Veteran's claims file reveals that following the issuance of a March 2004 rating decision that awarded a 10 percent disability rating for the bilateral hearing loss, the Veteran filed a notice of disagreement with the assigned disability rating in April 2004.  A Statement of the Case was issued in June 2004, however, the Veteran did not timely file a substantive appeal.  Thereafter, in October 2006, he filed a claim for an increased disability rating.  Thus, with respect to the Veteran's claim seeking an increased disability rating for the bilateral hearing loss, the March 2007 rating action is the proper rating decision on appeal.

A VA audiology assessment report dated in May 2006 shows that the Veteran reported hearing loss.  He was noted to use an old hearing aid.  Audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
60
60
85
66
LEFT
60
55
60
85
65

Speech audiometry revealed speech recognition ability of 72 percent in each ear.  
The diagnosis was moderately severe to severe sensorineural hearing loss in both ears above 750 Hertz.  

For the right ear, the average pure tone threshold of 66 decibels, along with speech discrimination of 72 percent, warrants a hearing impairment designation of Level VI.  38 C.F.R. § 4.85, Table VI (2013).  For the left ear, the average pure tone threshold of 65 decibels, along with speech discrimination of 72 percent, warrants a hearing impairment designation of Level V.  38 C.F.R. § 4.85, Table VI (2013).  Where the right ear is Level VI, and the left ear is Level V, the appropriate disability rating is 20 percent under Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII (2013).

The Board has also considered whether a higher disability rating might be 
warranted based on exceptional patterns of hearing impairment.   As each of the Veteran's pure tone threshold was 55 decibels or more at each of the four specified frequencies, under Table VIa, an average pure tone threshold of 66 decibels in the right ear warrants a hearing impairment designation of Level V, and an average pure tone threshold of 65 decibels in the left ear warrants a hearing impairment designation of Level V.  38 C.F.R. § 4.85, Table VIa (2013).  Where the right ear is Level V, and the left ear is Level V, the appropriate disability rating is 20 percent under Diagnostic Code 6100.

A VA audio examination report dated in December 2006 shows that the Veteran reported hearing loss with the greatest difficulty with following group conversation, watching television, and following telephone conversation.  Audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
55
50
55
65
56
LEFT
55
55
60
80
63

Speech audiometry revealed speech recognition ability of 88 percent in each ear.  
The diagnosis was normal to moderately severe sensorineural hearing loss in the right ear and normal to severe sensorineural hearing loss in the left ear.

For the right ear, the average pure tone threshold of 56 decibels, along with speech discrimination of 88 percent, warrants a hearing impairment designation of Level II.  For the left ear, the average pure tone threshold of 63 decibels, along with speech discrimination of 88 percent, warrants a hearing impairment designation of Level III.  Where the right ear is Level II, and the left ear is Level III, the appropriate disability rating is zero percent under Diagnostic Code 6100.

The Board has also considered whether a higher disability rating might be 
warranted based on exceptional patterns of hearing impairment.   As each of the Veteran's pure tone threshold was 55 decibels or more at each of the four specified frequencies in the left ear only, under Table VIa, an average pure tone threshold of 63 decibels in the left ear warrants a hearing impairment designation of Level V.  The above Level II hearing designation for the right ear, along with the exceptional Level V hearing in the left ear, warrants a 10 percent disability rating under Diagnostic Code 6100.

A VA audiology consult dated in August 2008 shows that the Veteran was said to be wearing hearing aids in both ears, which were noted to have good hearing performance.  Audiological evaluation was said to have revealed moderately severe  to severe sensorineural hearing loss from 1000 Hertz to 8000 Hertz, bilaterally.  Word discrimination testing was 80 percent for the right ear and 76 percent for the left ear.

A VA audiology note dated in July 2009 shows that the Veteran reported progressive decreased hearing in both ears.  He was also said to be having problems with his current hearing aids.  Audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
60
60
80
65
LEFT
60
55
60
80
64

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear.  The diagnosis was mild to severe sensorineural hearing loss in the right ear and moderate to severe sensorineural hearing loss in the left ear.  

For the right ear, the average pure tone threshold of 65 decibels, along with speech discrimination of 88 percent, warrants a hearing impairment designation of Level III.  For the left ear, the average pure tone threshold of 64 decibels, along with speech discrimination of 88 percent, warrants a hearing impairment designation of Level IV.  Where the right ear is Level III, and the left ear is Level IV, the appropriate disability rating is 10 percent under Diagnostic Code 6100.

Considering the formula for exceptional patterns of hearing impairment under Table VIa, an average pure tone threshold of 65 decibels in the right ear warrants a hearing impairment designation of Level V, and an average pure tone threshold of 64 decibels in the left ear warrants a hearing impairment designation of Level V.  Where the right ear is Level V, and the left ear is Level V, the appropriate disability rating is 20 percent under Diagnostic Code 6100.

A private audiology report from Audiofonos Audiocentro dated in March 2010 shows audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
60
70
75
66
LEFT
60
65
70
85
70

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left ear.

For the right ear, the average pure tone threshold of 66 decibels, along with speech discrimination of 88 percent, warrants a hearing impairment designation of Level III.  For the left ear, the average pure tone threshold of 70 decibels, along with speech discrimination of 84 percent, warrants a hearing impairment designation of Level III.  Where the right ear is Level III, and the left ear is Level III, the appropriate disability rating is zero percent under Diagnostic Code 6100.

Considering the formula for exceptional patterns of hearing impairment under Table VIa, an average pure tone threshold of 66 decibels in the right ear warrants a hearing impairment designation of Level V, and an average pure tone threshold of 70 decibels in the left ear warrants a hearing impairment designation of Level VI.  Where the right ear is Level V, and the left ear is Level VI, the appropriate disability rating is 20 percent under Diagnostic Code 6100.

A VA audio examination report dated in July 2011 shows that the Veteran reported a history of progressive decreased hearing in both ears.  Audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
60
60
80
65
LEFT
60
60
65
85
68
Speech audiometry revealed speech recognition ability of 78 percent in each ear.  The diagnosis was moderately severe to severe sensorineural hearing loss in each ear.  

For the right ear, the average pure tone threshold of 65 decibels, along with speech discrimination of 78 percent, warrants a hearing impairment designation of Level IV.  For the left ear, the average pure tone threshold of 68 decibels, along with speech discrimination of 78 percent, warrants a hearing impairment designation of Level IV.  Where the right ear is Level IV, and the left ear is Level IV, the appropriate disability rating is 10 percent under Diagnostic Code 6100.

Considering the formula for exceptional patterns of hearing impairment under Table VIa, an average pure tone threshold of 65 decibels in the right ear warrants a hearing impairment designation of Level V, and an average pure tone threshold of 68 decibels in the left ear warrants a hearing impairment designation of Level V.  Where the right ear is Level V, and the left ear is Level V, the appropriate disability rating is 20 percent under Diagnostic Code 6100.

A VA audiology assessment report dated in January 2012 shows that the Veteran reported a history of hearing loss, with no significant change in history reported.  Audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
60
60
85
66
LEFT
60
60
60
80
65

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear.  The diagnosis was moderate to severe sensorineural hearing loss in the each ear, with good speech recognition ability.

For the right ear, the average pure tone threshold of 66 decibels, along with speech discrimination of 88 percent, warrants a hearing impairment designation of Level III.  For the left ear, the average pure tone threshold of 65 decibels, along with speech discrimination of 80 percent, warrants a hearing impairment designation of Level IV.  Where the right ear is Level III, and the left ear is Level IV, the appropriate disability rating is 10 percent under Diagnostic Code 6100.

Considering the formula for exceptional patterns of hearing impairment under Table VIa, an average pure tone threshold of 66 decibels in the right ear warrants a hearing impairment designation of Level V, and an average pure tone threshold of 65 decibels in the left ear warrants a hearing impairment designation of Level V.  Where the right ear is Level V, and the left ear is Level V, the appropriate disability rating is 20 percent under Diagnostic Code 6100.

A VA audio examination report dated in April 2013 shows that the Veteran reported difficulty understanding conversational speech, mainly in the presence of background noise, and difficulties following instructions.  Audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
60
60
75
64
LEFT
60
60
65
75
64

Speech audiometry revealed speech recognition ability of 88 percent in each the right ear and 82 percent in the left ear.  The diagnosis was sensorineural hearing loss in each ear.  

For the right ear, the average pure tone threshold of 64 decibels, along with speech discrimination of 88 percent, warrants a hearing impairment designation of Level III.  For the left ear, the average pure tone threshold of 64 decibels, along with speech discrimination of 82 percent, warrants a hearing impairment designation of Level IV.  Where the right ear is Level III, and the left ear is Level IV, the appropriate disability rating is 10 percent under Diagnostic Code 6100.

Considering the formula for exceptional patterns of hearing impairment under Table VIa, an average pure tone threshold of 64 decibels in each ear warrants a hearing impairment designation of Level V.  Where each ear is Level V, the appropriate disability rating is 20 percent under Diagnostic Code 6100.

During his April 2013 hearing, the Veteran indicated that his hearing loss has become progressively worse, and that he continued to use hearing aids except when sleeping.  

Having carefully considered the Veteran's claim, the Board finds that the preponderance of the evidence over the entire course of this appeal suggests that the Veteran exhibits an exceptional pattern of hearing impairment.  Except for finding on examination in December 2006, all other diagnostic findings dated from May 2006 to April 2013 show that that Veteran's puretone threshold average in each ear has ranged from 64 to 70.  In each such instance, the Veteran has met the criteria for a 20 percent disability rating under Table VIa of 38 C.F.R. § 4.85.  As such, the Board finds that the Veteran's bilateral hearing loss disability since the October 18, 2006, date of claim for an increased disability rating, has warranted a 20 percent disability rating.  The evidence during this period has not shown that the Veteran has ever met the criteria for a disability rating greater than 20 percent under Diagnostic Code 6100.

Additionally, the various VA examination reports of record specifically addressed the functional limitations caused by the Veteran's hearing loss, as the Veteran described such effects as difficulty when in a crowded area with background noise, and with hearing conversation.  This was sufficient to comply with the applicable VA policies regarding functional impairment of a hearing loss disability.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (VA audiologist's indication in a report that the Veteran's hearing loss affected his ability to sleep was sufficient to comply with requirements of VA's own internal guidance documents that VA audiologists describe the effects of a hearing disability on occupational functioning and daily activities.)

The Board has carefully considered the Veteran's assertions as to the severity of his hearing loss over the course of the entire period on appeal, and in no way discounts the Veteran's asserted difficulties or his assertions that his bilateral hearing loss should be rated higher.  While he is generally considered competent to report symptoms as experienced or observed, a lay person is not competent to offer an opinion on complex medical questions, such determining the clinical severity of hearing loss.  As explained above, for VA rating purposes the severity of hearing loss is based on mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  The Veteran does not maintain that he has the ability or equipment to make such findings himself, nor has he identified any evidence or medical source which has made findings which comport with the assignment of a higher disability rating for his bilateral hearing loss during the appeal period.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  Essentially, in this case, it is beyond the Veteran's competence to determine the severity of his bilateral hearing loss.  It must be emphasized that the assignment of schedular disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann, 3 Vet. App. at 349.  In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results.  See 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1.

Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate.  However, in the present case, the Veteran's symptoms have generally remained constant throughout the course of the period on appeal and as such staged ratings are not warranted.

In sum, the weight of the credible evidence demonstrates that the Veteran's bilateral hearing loss does not warrants a 20 percent disability rating, but no higher, for bilateral hearing loss under Diagnostic Code 6100 for all periods under consideration.  To the extent that the preponderance of the evidence is against the claim for a disability rating greater than 20 percent over the course of this appeal, the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. 53-56. 

Additionally, the Board finds that the Veteran's bilateral hearing loss does not warrant referral for extra-schedular consideration.  In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration.  The level of severity of the Veteran's bilateral hearing loss is adequately contemplated by the applicable diagnostic criteria.  The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate.  In this regard, as a result of this decision, the bilateral hearing loss has been awarded an increased disability rating of 20 percent since the date of the Veteran's claim.  In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case.  Accordingly, the claim will not be referred for extra-schedular consideration. 

Finally, as the Veteran is retired and has not alleged unemployability due to his service-connected bilateral sensorineural hearing loss hearing loss, the matter of entitlement to a total disability rating based on individual unemployability due to service-connected disability is not raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

Service connection for a heart disorder is denied.

A 20 percent disability rating greater for bilateral sensorineural hearing loss from October 18, 2006, is granted, subject to the applicable criteria governing the payment of monetary benefits.

A disability rating greater than 20 percent for bilateral sensorineural hearing loss is denied.


REMAND

After carefully considering this matter, and for reasons expressed immediately below, the Board believes that the issue of an increase disability rating for the service-connected bilateral conjunctivitis must be remanded for further development of the record.  The Board regrets the delay associated with this remand, especially considering that this matter was the subject of a previous remand.  However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. 

The Veteran most recently underwent a VA examination in April 2013.  In the associated examination report, the examiner indicated that the date of the Veteran's last eye examination was November 14, 2011.  A review of the Veteran's electronic and paper claims files reveals that the results of the November 2011 VA examination report have not been associated with the claims file.  As the findings of such examination are pertinent to the issue before the Board, on remand, an effort must be undertaken to obtain the November 2011 VA eye examination report.  VA has a duty to request all available and relevant records from federal agencies, including VA medical records.  See 38 C.F.R. § 3.159(c)(2), (c)(3); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made).

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) (2013).  Expedited handling is requested.)

1.  The RO/AMC shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran for treatment of his eyes that have not yet been associated with the claims file, to specifically include a November 14, 2011, VA examination report.  

If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact shall clearly be documented in the claims file, and the Veteran informed in writing.  The Veteran may submit medical records directly to VA.

2.  The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required.  If further action is required, it should be undertaken prior to further claims adjudication.

3.  The RO/AMC will then readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure.  The Veteran need take no action until he is so informed.  He 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).  The purposes of this remand are to obtain additional information and comply with all due process considerations.  No inference should be drawn regarding the final disposition of this claim as a result of this action.

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs