Citation Nr: 1512203	
Decision Date: 03/23/15    Archive Date: 04/01/15

DOCKET NO.  13-06 317A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for erectile dysfunction, claimed as a result of herbicide exposure and/or as secondary to service-connected disabilities.

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


REPRESENTATION

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


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel



INTRODUCTION

The Veteran served on active duty from July 1966 to June 1969.  He is in receipt of a Combat Action Ribbon, which denotes his participation in combat.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for erectile dysfunction and granted service connection for bilateral hearing loss with a noncompensable rating effective May 30, 2010.  

The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS).  

The issue of entitlement to service connection for a bladder condition has been raised by the record in a March 2014 VA Form 21-526EZ, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014). 

The issue of entitlement to service connection for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  The average Puretone threshold in decibels during an authorized audiological evaluation in November 2010 was 37.5 in the right ear and 43.75 in the left.  Speech recognition scores using the Maryland CNC word lists were 98 percent in both ears.  

2.  The average Puretone threshold in decibels during an authorized audiological evaluation in June 2013 was 32.5 in the right ear and 38.75 in the left.  Speech recognition scores using the Maryland CNC word lists were 90 percent in the right ear and 96 percent in the left ear.  
CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, Tables VI, VIA and VII (Diagnostic Code 6100) and § 4.86 (2014). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In this case, the Veteran is disagreeing with the rating assigned after service connection for bilateral hearing loss has been granted and an initial disability rating and effective date have been assigned.  Thus the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

VA has obtained service treatment records, assisted the Veteran in obtaining evidence, to include private treatment records, and afforded the Veteran appropriate examinations to determine the severity of his disability.  All known and available records relevant to the issue being adjudicated on appeal have been obtained and associated with the Veteran's electronic files; and the Veteran has not contended otherwise. 

VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim for entitlement to an initial compensable rating for bilateral hearing loss at this time.

Increased Rating

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate rating codes identify various disabilities.  38 C.F.R. Part 4.  In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  See generally 38 C.F.R. §§ 4.1, 4.2.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 

Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).

The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral sensorineural hearing loss range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz ).  See 38 C.F.R. § 4.85 (2014). 

To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness.  See 38 C.F.R. § 4.85 and Tables VI, VIA, and VII (Diagnostic Code 6100) (2014).  Section 4.86 provides an alternative rating method which may be used for certain defined "exceptional patterns of hearing impairment." 

Section 4.85(a) requires that an examination for hearing loss be conducted by a state-licensed audiologist, and must include both a controlled speech discrimination test (Maryland CNC test) and a pure tone audiometry test.  Examinations must be conducted without the use of hearing aids.  Section 4.85(c) indicates that Table VIA, "Numeric designation of Hearing Impairment Based Only on Puretone Threshold Average," will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of inconsistent speech discrimination scores.  

The Veteran seeks a compensable rating for his service-connected bilateral hearing loss.  He reports that he misses out on conversations and instructions as a result of his hearing loss.  See July 2010 VA Form 21-4138.

The evidence of record in this case consists of two VA examination reports.  During a November 2010 VA audio examination, the Veteran reported that in addition to tinnitus, his chief complaint was decreased bilateral hearing.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
30
40
50
LEFT
25
35
35
45
60

The average Puretone threshold in decibels was 37.5 in the right ear and 43.75 in the left.  Speech audiometry revealed speech recognition ability of 98 percent in both ears.  Under Table VI, 38 C.F.R. § 4.85, these results correspond to a Level I in both ears.  The applicable percentage rating is 0 percent under Table VII.  See 38 C.F.R. § 4.85.

During the June 2013 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ), the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
25
35
50
LEFT
25
30
25
45
55

The average Puretone threshold in decibels was 32.5 in the right ear and 38.75 in the left.  Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 96 percent in the left ear.  Under Table VI, 38 C.F.R. § 4.85, these results correspond to a Level II in the right ear and a Level I in the left ear.  The applicable percentage rating is 0 percent under Table VII.  See 38 C.F.R. § 4.85.  The examiner reported that the Veteran's hearing loss impacted ordinary conditions of daily life, including his ability to work, based on the Veteran's report of some hearing difficulty and the regular use of hearing aids.  

The preponderance of the evidence of record does not support the assignment of a compensable rating for the service-connected bilateral hearing loss.  This is so because the results of audiometric testing in November 2010 and June 2013 reveal that the Veteran's hearing loss disability remained consistent.  None of this evidence has shown his bilateral hearing loss to be of such severity so as to warrant a compensable schedular rating.  Rather, as noted above, the applicable percentage rating at the time of each examination has been 0 percent under Table VII. 

The Board has considered whether 38 C.F.R. § 4.86 (a) and (b) apply to this case.  Consideration under these provisions, however, is not warranted, as neither the right nor left ear displayed pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) of 55 decibels or more, nor were pure tone thresholds 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, with each ear evaluated separately.  See November 2010 VA audio examination report; June 2013 hearing loss and tinnitus DBQ.  

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014).

Extraschedular Consideration

The rating schedule represent as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  38 C.F.R. § 3.321(a), (b) (2014).  To afford justice in exceptional situations, an extraschedular rating can be provided.  38 C.F.R. § 3.321(b).

The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or 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 RO or Board must determine whether the claimant's exceptional 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 a 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 Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with the Veteran's bilateral hearing loss (i.e., decreased hearing; missing out on conversations and instructions) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.  The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned.  As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted.


ORDER

An initial compensable rating for bilateral hearing loss is denied.  


REMAND

The Veteran seeks entitlement to service connection for erectile dysfunction on several bases, to include as related to exposure to herbicides during service and/or as secondary to his service-connected anxiety disorder and/or prostate cancer.  

The Veteran's service personnel records document service in the Republic of Vietnam between May 1968 and May 1969.  Given the foregoing, the Veteran's exposure to herbicide agents is presumed.  See 38 C.F.R. § 3.307 (6) (iii) (2014).  Although erectile dysfunction is not one of the diseases that is presumed to be related to such presumed herbicide exposure, the Veteran may also establish service connection with proof of actual direct causation.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Veteran has not been afforded a VA examination in conjunction with his claim for service connection for erectile dysfunction.  Given his assertions and his presumed exposure to herbicides while in Vietnam, an examination must be conducted on remand.  

The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158 and 3.655 (2014). 


Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an appropriate VA examination to determine the etiology of his erectile dysfunction.  The electronic files must be made available to and reviewed by the examiner.  All necessary tests should be conducted. 

The examiner is asked to provide an opinion as to the following: 

(a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's erectile dysfunction had its onset during active service or is related to any in-service disease, event, or injury, to include the Veteran's presumed exposure to herbicides and his report that he had symptoms of erectile dysfunction in the late 1970s, but was hesitant to seek help? 

(b) If the answer to (a) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected prostate cancer and/or anxiety disorder caused the erectile dysfunction?

(c) If the answer to (a) and (b) are no, is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected prostate cancer and/or anxiety disorder aggravated the erectile dysfunction?

The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of erectile dysfunction (i.e., a baseline) before the onset of the aggravation. 

The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

2.  Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action is to be implemented.

3.  Finally, readjudicate the claim.  If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond.  The case should then be returned to the Board for further appellate review, if in order. 

The appellant has the right to submit additional evidence and argument on the matter 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 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 2014).



______________________________________________
KATHLEEN K. GALLAGHER 
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs