Citation Nr: 1342009	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  11-05 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to a compensable disability rating for bilateral sensorineural hearing loss.

2.  Entitlement to service connection for sleep apnea.

3.  Entitlement to service connection for open angle glaucoma.


REPRESENTATION

Veteran represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

L. Pelican, Associate Counsel
INTRODUCTION

The Veteran served in the United States Navy from December 1998 to November 2008.

These matters come before the Board of Veterans' Appeals (the Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, which, in part, granted service connection for the Veteran's bilateral sensorineural hearing loss and assigned a noncompensable evaluation.  The decision also denied entitlement to service connection for sleep apnea and open angle glaucoma.  The Veteran appealed the decision.

The Veteran failed to report to his scheduled Travel Board hearing set for January 2013.  Of record is an October 2012 letter sent to the Veteran's address of record noting the date, place, and time of the Travel Board hearing.  VA did not receive a request for a postponement of the hearing.  Thus the Board treats the present case as though the Veteran's request for a Travel Board hearing was withdrawn.  38 C.F.R. § 20.704(d) (2013).

The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence.

The issues of entitlement to service connection for sleep apnea and entitlement to service connection for open angle glaucoma are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDING OF FACT

For the entire appeal period, the Veteran has demonstrated, at worst, Level I bilateral sensorineural hearing loss.

CONCLUSION OF LAW

The criteria for a compensable evaluation for a bilateral sensorineural hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.31, 4.85, 4.86 Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Duties to Notify and Assist

In correspondence dated January 2009, VA satisfied its duty to notify the Veteran pursuant to 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, 3.326(a), 4.2 (2013).

The appeal for a higher initial disability rating for the service-connected bilateral sensorineural hearing loss arises from a disagreement with the initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

VA's duty to assist under the VCAA includes helping the Veteran obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013).

Here, the Veteran's service treatment records are in the claims file.  The Veteran has not identified any other records or evidence that remains outstanding.  Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied.  See 38 C.F.R.   § 3.159(c) (2013).

With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013).

The RO provided the Veteran VA examinations in January 2009 and December 2010.  The examination reports are thorough and supported by the other evidence of record.  The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria.  The examination reports also discussed the impact of the disability on the Veteran's daily living.  They are, therefore, adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Neither the Veteran nor his representative has argued that the Veteran's condition has worsened, nor is there medical evidence demonstrating a change in severity.  Therefore, based on the adequate examinations of record, the absence of evidence of worsening symptomatology since the last examination, and the fact there is no rule as to how current an examination must be, the Board concludes the examination reports are adequate.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that the mere passage of time does not require VA to provide a new medical examination). 

Additionally, the Board observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2013).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claim.  Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case, and may proceed to the merits of the Veteran's claim.

Analysis

The Veteran essentially asserts that his bilateral sensorineural hearing loss is more disabling than contemplated by the current non-compensable evaluation.

Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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 (2013).

The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown.  38 C.F.R. § 4.31 (2013).

While the Veteran's entire history is reviewed when assigning a disability evaluation, 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).  The United States Court of Appeals for Veterans Claims (the Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999); 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.

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  The rating schedule 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 (Maryland CNC) together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.

The percentage disability evaluation is then found from Table VII (in 38 C.F.R. 
§ 4.85), by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal 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 percentage evaluation is 30 percent.  38 C.F.R. § 4.85 (2013). 

The provisions of 38 C.F.R. § 4.86(a) provide that when the puretone threshold at each of the four specified frequencies (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.  The provisions of 38 C.F.R. § 4.86(b) 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 is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.

The relevant evidence includes a January 2009 audiological examination report, which noted the following pure tone thresholds, in decibels:




HERTZ




500
1000
2000
3000
4000
Avg.
RIGHT
25
25
25
25
25
25
LEFT
25
25
25
15
25
22.5

Speech audiometry revealed speech recognition ability of 92 percent bilaterally.  The hearing impairment levels correspond to Level I in the right ear and Level I in the left ear under Table VI.  Intersecting Levels I and I under Table VII results in a non-compensable rating.  The Board also considered the provisions of 38 C.F.R.     § 4.86 governing exceptional patterns of hearing impairment.  However, since the audiological report fails to demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more, or that pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear, evaluation for exceptional patterns of hearing impairment is not warranted.  See 38 C.F.R. § 4.86 (a), (b) (2013).

A December 2010 VA audiological examination report noted the following puretone thresholds, in decibels:




HERTZ




500
1000
2000
3000
4000
Avg.
RIGHT
15
10
15
20
15
15
LEFT
15
10
10
20
10
12.5

Speech audiometry revealed speech recognition ability of 94 bilaterally.  The hearing impairment levels correspond to Level I in the right ear and Level I in the left ear under Table VI.  Intersecting Levels I and I under Table VII results in a non-compensable rating.  Additionally, an exceptional pattern of hearing impairment was not shown.  See 38 C.F.R. § 4.86 (a), (b) (2013).

In short, throughout the appeal, the Veteran's hearing loss disability has remained at a non-compensable level pursuant to VA regulations.

It is important to note that the results of the VA audiometric testing do not signify the absence of a significant disability associated with the Veteran's hearing loss disability.  However, the degree to which this disability affects the average impairment of earnings, according to the Rating Schedule, results in a noncompensable rating.  See id.; 38 U.S.C.A. § 1155 (West 2002).  Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  As such, an evaluation in excess of the current disability evaluation is not warranted.

Although the Board finds that the medical evidence does not support the assignment of a higher rating for sensorineural bilateral hearing loss, to the extent that his hearing is significantly impaired, the fact that the Veteran's hearing acuity is less than optimal does not by itself establish entitlement to a higher disability rating.  To the contrary, it is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  While sympathetic to the Veteran's complaints, the Board notes that entitlement to a compensable evaluation has not been demonstrated in the present case.

Based upon the guidance of the Court in Fenderson, the Board has considered whether a staged rating is appropriate.  However, the Veteran's symptoms do not warrant staged ratings as his disability has never been disabling to a degree warranting compensation.

The Board has not overlooked the Veteran's statements with regard to the severity of his disability.  The Veteran is competent to report on factual matters and observable symptoms of which he had firsthand knowledge; and the Board finds that the Veteran's reports concerning symptomatology are credible.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's VA examination reports have been accorded greater probative weight.  Furthermore, evaluation of hearing loss is predominately based on clinical findings taken by medical measurements.

Extraschedular Considerations

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2013).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate the Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's bilateral sensorineural hearing loss with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology.

Specifically, the Veteran indicated that he had difficulty understanding conversations and difficulty hearing when background noise was present.  The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.  Therefore, the Veteran's struggle to comprehend verbal conversations and other noises is a factor contemplated in the regulations and rating criteria as defined.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule.  In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present.  In particular, the Veteran does not contend, and the evidence of record does not suggest, that his bilateral sensorineural hearing loss disability has caused him to miss work or has resulted in any hospitalizations.  Therefore, the Veteran's service-connected bilateral sensorineural hearing loss does not result in marked interference with employment or frequent periods of hospitalization.  38 C.F.R. § 3.321(b)(1) (2013).  Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted.

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that his hearing loss disability renders him unable to secure of follow substantially gainful employment.  Accordingly, the Board concludes that a claim for TDIU has not been raised.

As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an initial compensable rating for bilateral sensorineural hearing loss disability is denied.


REMAND

The June 2009 rating decision denied the Veteran's claims for entitlement to service connection for sleep apnea and open angle glaucoma on the basis that neither disorder was shown to have occurred in service, nor did the record contain nexus opinions linking the Veteran's current disorders to his military service.  However, the Veteran's service treatment records indicate the existence of in-service events that may be linked to the Veteran's current condition.

With respect to the Veteran's claim for sleep apnea, a Post-Deployment Health Assessment from February 2003 indicated that the Veteran complained of still feeling tired after sleeping.  The Veteran also submitted a buddy statement from C.G., received in May 2009, in which C.G. reported witnessing the Veteran's excessive snoring while they served together.

With respect to the Veteran's open angle glaucoma claim, a November 2007 Service Treatment Record (STR) indicates that the Veteran experienced increased intraocular pressure in both eyes.  The Veteran's treating physician at the time requested an optometry evaluation, but no records relating to such an evaluation are in the claims file.

VA regulation provides in pertinent part that a VA examination is necessary where the record does not contain sufficient competent medical evidence to decide the claim, but there is evidence of an in-service event, injury, or disease.  38 C.F.R. § 3.159(c)(4)(i) (2013).  Given the aforementioned evidence, the Veteran should be afforded new VA examinations to evaluate the current nature and etiology of his sleep apnea and open angle glaucoma disorders.

While on remand, all outstanding VA and private treatment records relating to the Veteran's sleep apnea and open angle glaucoma disorders should be obtained and made part of the record.  Then the Veteran should be scheduled for new VA examinations for his sleep apnea and open angle glaucoma disorders.  Any accompanying opinion should be supported by a rationale.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain all outstanding VA treatment and evaluation records dated for the entire period on appeal to present.  In particular, all records and reports relating to sleep apnea and open angle glaucoma should be obtained.  All records received should be associated with the claims file.

2.  Request the Veteran furnish all dates and places of treatment for his sleep apnea and open angle glaucoma.  After obtaining authorization from the Veteran, request copies of any outstanding treatment records from any treatment provider identified by the Veteran.  If VA is unable to obtain such records, the Veteran should be accorded the opportunity to furnish such records directly to VA.  All records received should be associated with the claims file.

3.  When the above actions have been accomplished, to the extent possible, afford the Veteran an examination by an appropriate examiner, to determine the current nature and etiology of his sleep apnea.  The examiner should review the Veteran's claims file in conjunction with the examination.  Any indicated studies or diagnostic tests should be performed.  

Based on the review and the exam, the examiner is asked to opine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's current sleep apnea had its onset in service or is otherwise related to service.  Review of the entire file is required; however attention is invited to the February 2003 Post Deployment Health Assessment noting complaints of feeling tired after sleeping, as well as the May 2009 buddy statement regarding snoring.

A rationale for any opinion offered is requested.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

4.  Afford the Veteran an examination by an appropriate examiner, to determine the current nature and etiology of his open angle glaucoma.  The examiner should review the Veteran's claims file in conjunction with the examination.  Any indicated studies or diagnostic tests should be performed.  

Based on the review and the exam, the examiner is asked to opine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's current open angle glaucoma had its onset in service or is otherwise related to service.  Review of the entire file is required; however attention is invited to November 2007 service treatment record noting increased intraocular pressure.

A rationale for any opinion offered is requested.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

4.  Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim.  If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond.

The case should then be returned to the Board for appropriate appellate consideration.

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

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).



______________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs