Citation Nr: 1524221 Decision Date: 06/08/15 Archive Date: 06/19/15 DOCKET NO. 12-24 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Service connection for residuals of pericarditis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Dustin Ware, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1946 to August 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) St. Petersburg, Florida The Veteran requested a hearing before the Board of Veterans' Appeals (Board), and this hearing was scheduled for March 2015. However, in a February 2015 statement, written on a February 2015 hearing notification letter from VA, the Veteran informed the Board that he would not be appearing. A request to reschedule the hearing was not made. As such, his request for a hearing is considered withdrawn. 38 C.F.R. § 20.702(e) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. During the appeals period, the Veteran's bilateral hearing loss is shown to result in either Level I right ear and Level VIII left ear or Level VI right ear and Level I left ear hearing acuity. Either of which results in a noncompensable rating under 38 C.F.R. § 4.85, Table VII. 2. Any residuals of pericarditis did not manifest in active service and any current condition is not otherwise etiologically related to the in-service episode of pericarditis. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2014). 2. The criteria for entitlement to service connection for residuals of pericarditis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In regards to the Veteran's claim of an initial compensable evaluation for bilateral hearing loss, service connection has been granted and an initial disability rating and effective date have been assigned, this 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 v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. Therefore, the Board finds that no useful purpose would be served by delaying appellate review to send out additional notice letters as to this claim. As to the claim for service connection for residuals of pericarditis, VA's duty to notify was satisfied prior to the initial rating decision through a January 2010 notice letter sent to the appellant that fully addressed all notice elements. The letters informed the appellant of what evidence was required to substantiate his service connection claim and of the appellant's and VA's respective duties for obtaining evidence. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that the Veteran was provided all required notice and that no useful purpose would be served by delaying appellate review to send out additional notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2014). Service treatment records are associated with claims file. Post-service VA and non-VA treatment records are also associated with the claims file. The Veteran has not identified any additional records that should be obtained prior to appellate consideration. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Veteran was afforded VA examinations in March 2010 and June 2012. The Board finds these examinations adequate for the purposes of the instant claims, as they involved reviews of the Veteran's pertinent medical history, clinical evaluations of the Veteran, provide adequate discussions of relevant symptomatology, and includes full rationales for the etiological opinions provided. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. I. Increased Rating for Bilateral Hearing Loss Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2014). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2014); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating; that is, be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Rating Schedule The Veteran's service-connected bilateral hearing loss has been evaluated as noncompensable throughout the appeal period under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85 (2014). In evaluating hearing loss, disability ratings on a schedular basis are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz ) is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2014). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIA is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (2014). Turning to the record, a March 2010 VA audiological examination recorded pure tone thresholds, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 25 30 35 45 34 Left 60 80 100 105 86 Speech recognition was 96 percent in the right ear and 60 percent in the left ear. Entering the average pure tone thresholds and speech recognition score into Table VI reveals the numeric designation of hearing impairment is I right ear and VIII left ear. 38 C.F.R. § 4.85. However, in regards to the left ear, Table VIA should be consulted as pure tone thresholds are 55 decibels or more at 1,000 Hz through 4,000 Hz. 38 C.F.R. § 4.86. Table VIA reveals the numeric designation for hearing impairment is IV. Id. This designation is not higher than the VIII resulting from consulting Table VI so designation VIII will be used. Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. See 38 C.F.R. § 4.85. A June 2012 VA audiological examination recorded pure tone thresholds, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 45 45 85 85 65 Left 20 30 30 45 31 Speech recognition was 64 percent in the right ear and 94 percent in the left ear. Entering the average pure tone thresholds and speech recognition score into Table VI reveals the numeric designation of hearing impairment is VI right ear and I left ear. 38 C.F.R. § 4.85. Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. Id. The claims file also contains a record of a January 2010 audiological evaluation performed by Dr. P. The report contains the results of an audiogram and word recognition scores. However, there is no indication that these word recognition scores were the result of a Maryland CNC controlled speech discrimination test as required for rating purposes by 38 C.F.R. § 4.85. Therefore, this audiological evaluation has less probative value than the other evaluations of record. The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as difficulty hearing. 38 C.F.R. § 3.159(a)(2) (2014); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Nevertheless, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for pure tone thresholds. Because he is not competent to provide probative evidence in this regard, there is necessarily no need to additionally consider the credibility of his lay statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In summation, there is no audiometric testing of record at any point during the appeal period that would indicate that a compensable evaluation for bilateral hearing loss is warranted. Accordingly, the claim for a compensable evaluation for hearing loss disability is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). As noted above, ratings for hearing loss are determined by a mechanical application of the audiometric findings to the rating provisions and the Board is constrained by the applicable laws and regulations. See Lendenmann 3 Vet. App. at 349. B. Other Considerations The Board also has 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) (2014). 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 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 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 evaluations for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral hearing loss with the established criteria found in the rating schedule for this disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the rating criteria provides for evaluations based on objective measurements of the Veteran's hearing loss. The Veteran has complained of pain which he attributes to his tympanic membrane perforation, right ear; however, the Veteran is service-connected for bilateral hearing loss not for this perforation. Furthermore, in a February 2011 ENT consult note an otolaryngologist stressed that the ear pain is not related to the Veteran's ear problems. As the first prong of Thun has not been satisfied, 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 notes that entitlement to a total disability evaluation based on individual unemployability (TDIU) is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, while both the March 2010 and June 2012 VA examination reports indicate that hearing difficulty would have an effect on occupational activities this does not appear to be such a marked interference with employment that a remand or referral of a claim for TDIU is appropriate. See Rice v. Shinseki, 22 Vet. App. 447 (2009). II. Service Connection for Residuals of Pericarditis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent 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); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A review of the Veteran's service treatment records reveals an episode of pericarditis in late 1960. The cause was considered to likely be viral. A February 1961 consultation report indicates that Veteran had completely recovered from an acute episode of pericarditis with no residuals. The Veteran was seen again in May 1964 for symptoms similar in nature to those that resulted in the previous diagnosis of acute pericarditis. This time the examiner concluded "[i]t is felt that this symptomatology is not cardiac in origin. The patient is a highly nervous individual and it is felt that his pain is most likely on an emotional basis. There is no evidence of residual damage from the acute pericarditis or any evidence of myocardial pathology at the present time." Furthermore, the August 1965 Report of Medical Examination, completed at the time of the Veteran's release from active duty, noted a normal clinical evaluation of the heart and chest. The claims file includes treatment records from Dr. E.J.S. The doctor "suspects that the Veteran has pericarditis type pleurisy symptoms, which are chronic and more likely related to scarring he received when he had his first episodes back in the 40s." In rendering this opinion the doctor relied on the Veteran's reported history of pericarditis. The Veteran was also provided a VA examination in June 2012. Following a review of the Veteran's claims file and a physical examination of the Veteran, the VA examiner concluded the claimed condition was less likely than not incurred in or caused by the in-service episode of pericarditis. In support of his conclusion, the examiner notes that during active service two separate medical examiners concluded that the episode of pericarditis resolved with no residuals. The medical examiner at the time of release from active duty evaluated the Veteran's heart and chest as normal. Moreover, the VA examiner observes there is no medical evidence of a chronic heart problem. The spect myocardial perfusion done by Dr. E.J.S. was normal. While in light of this Dr. E.J.S.'s still suspected pleurisy secondary to in-service pericarditis, the VA examiner notes that Dr. E.J.S. made this determination without benefit of review of the Veteran's claims file or other records. Initially, the Board notes the Veteran's in-service pericarditis appears to have been acute and resolved with no residuals during active duty service. In reaching this conclusion, the Board relies on the in-service medical examiners' conclusions as to such and the findings in the Report of Medical Examination completed at release from active duty. Nevertheless, when disability is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). However, the record is unclear on whether there is a current chronic heart condition that could be considered a residual of pericarditis. The VA examiner concluded there is not. Dr. E.J.S. stated that he suspects pericarditis type pleurisy but did not provide a definitive diagnosis. To prevail on the issue of service connection, there must be medical evidence of a current disability at some point during the pendency of the claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). Even if the Board considered the Veteran to have been diagnosed with pericarditis type pleurisy the weight of the evidence of record does not support a conclusion that this condition relates to active duty service. As Dr. E.J.S.'s opinion relied on a history of pericarditis related by the Veteran, the Board finds it to be less probative that the VA examiner's opinion. The Board acknowledges that "the absence of claims file review by a private medical expert does not categorically exclude the possibility that he is nevertheless informed of the relevant facts." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). However, it is the Board's finding that Dr. E.J.S. was not fully informed of the relevant facts. In this case, in relying on the history related by the Veteran, it appears the doctor was unaware of the in-service examiners' conclusions about the extent to which the Veteran recovered from pericarditis and the absence of residuals. The Board is of the opinion that these facts are highly relevant to any determination regarding the relationship between in-service pericarditis and possible residuals. Moreover, though the Veteran states that he has dealt with chest pain since his in-service episodes of pericarditis the medical records associate with the claims file show no treatment for this issue until May 2010. May 2010 Dr. E.J.S. Treatment Records. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). In this case, as mentioned, the medical evidence does not show treatment or a possible diagnosis of residuals of pericarditis until May 2010, approximately 45 years after service. The Board has considered the Veteran's lay statements regarding pain he suffers that he believes to be a residual of pericarditis. A Veteran is competent to report things he experiences or observes through his five senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent or qualified, as a layperson, to ascribe these symptoms to a specific diagnosis. Certain disabilities are medically complex in nature and simply not readily amenable to lay diagnosis or probative opinion on etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board acknowledges the Veteran's contentions, but as a lay person, he is not competent to render an etiology opinion on a complex medical question, such as whether he suffers from residuals of pericarditis. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In summation, the weight of the evidence is against a finding that any current condition is a residual of the in-service episode of pericarditis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a finding of service connection for residuals of pericarditis that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER An initial compensable evaluation for bilateral hearing loss is denied. Service connection for residuals of pericarditis is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs