Citation Nr: 1539472 Decision Date: 09/15/15 Archive Date: 09/24/15 DOCKET NO. 14-33 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of bladder cancer, claimed as due to asbestos exposure. 2. Entitlement to an initial compensable disability rating (or evaluation) for bilateral hearing loss. 3. Entitlement to an earlier effective date than March 20, 2012 for service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1961 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2015, at a Board videoconference hearing, the Veteran provided testimony relevant to the appeal from the RO in Columbia, South Carolina, before the undersigned Veterans Law Judge in Washington, DC. A copy of the hearing transcript has been associated with the electronic file on the Veterans Benefits Management System (VBMS). The Board has reviewed the electronic files on "Virtual VA" and VBMS to ensure a complete review of the evidence in this case. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran has a current disability of residuals of bladder cancer. 2. Symptoms of bladder cancer were not chronic in service, were not continuous after service separation, and did not manifest a compensable degree within one year of service separation. 3. The Veteran was not exposed to asbestos in service. 4. The bladder cancer and bladder cancer residuals are not related to service. 5. For the entire initial rating period from March 20, 2012, the bilateral hearing loss has been manifested by no more than level II hearing in the right ear and level II hearing in the left ear, as determined by audiometric data and speech recognition scores. 6. The Veteran filed a claim for service connection for tinnitus on March 20, 2012. 7. There were no communications received prior to March 20, 2012 that could be construed as a formal or informal claim for service connection for tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of bladder cancer, claimed as due to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 2. For the entire rating period from March 20, 2012, the criteria for an initial disability rating in excess of 0 percent for bilateral hearing loss have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1- 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2015). 3. The criteria for an earlier effective date prior to March 20, 2012 for the grant of service connection for tinnitus have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When an initial rating appeal or earlier effective date appeal comes before the Board following a decision to grant service connection and assign an initial rating and assign an effective date for service connection, no additional VCAA notice is required. Courts have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date); 38 C.F.R. § 3.159(b)(3)(i) (stating that there is no duty to provide VCAA notice upon receipt of a NOD). As to the appeal for service connection for residuals of bladder cancer, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status, (2) existence of a disability, (3) a connection between a veteran's service and the disability, (4) degree of disability, and (5) effective date of the disability. In an April 2013 letter sent prior to the initial denial of the claim in July 2013, the RO notified the Veteran about the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. The Board also concludes that VA has satisfied its duties to assist the Veteran. VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, service personnel records, post-service VA and private treatment records, VA examination reports, the May 2015 Board hearing transcript, and the Veteran's lay statements. VA examined the hearing loss in July 2013. The July 2013 VA examiner reviewed the claims file, performed a physical evaluation and diagnostic testing, interviewed the Veteran about past and present symptomatology, and reported on the relevant rating criteria. The Board finds that the July 2013 VA examination and medical opinion are adequate to assist in determining the issue of an initial rating for bilateral hearing loss, and that no further examination or opinion is needed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Because the weight of the evidence is against finding any injuries, diseases, or events in service that could serve as a basis for service connection for bladder cancer, there is no duty to provide a VA medical examination for service connection for bladder cancer. Absent evidence at least suggestive of an in-service event, injury, or disease to which a competent medical opinion could relate the claimed disabilities, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the claim for service connection for bladder cancer without being speculative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative). Without credible evidence to support the Veteran's contentions of in-service asbestos exposure, the Board finds that VA's duty to assist the Veteran in obtaining additional evidence to support a nexus has not been triggered. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that, where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). For these reasons, the Board finds that a remand for a medical opinion on the etiology of bladder cancer is not warranted. In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of the claims, and to respond to VA notices. The Veteran and representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Bladder cancer (as a malignant tumor) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the claim for service connection for residuals of bladder cancer. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as malignant tumors, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through the senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 312. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d at 1372). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102. Service Connection for Residuals of Bladder Cancer The Veteran contends that he developed bladder cancer from being exposed to asbestos in service. Specifically, the Veteran asserts that bladder cancer was caused by exposure to asbestos in an old warehouse while stationed at Elmendorf Air Force Base in Alaska. Initially, the Board finds that the Veteran has current residuals of bladder cancer disability. Private treatment records show that the Veteran was treated for bladder cancer beginning in 1986, and that the bladder cancer has been manifested by recurrent superficial tumors. See, e.g., Dr. J.W. private treatment records, 1996-2001. On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that symptoms of bladder cancer were chronic in service, continuous after service separation, or manifested to a compensable degree within one year of service separation. The Veteran has not asserted, and the record does not otherwise reflect, that symptoms of bladder cancer were chronic in service. Similarly, the Veteran does not contend that symptoms of bladder cancer were continuous after service separation. Instead, the Veteran asserts that the bladder cancer, which first manifested in 1974 and was first diagnosed in 1993, was caused by exposure to asbestos in service. See Board hearing transcript at 5-6. As such, the evidence does not show that bladder cancer manifested to a compensable degree within one year of service separation in December 1968. As the weight of the evidence demonstrates no chronic symptoms of bladder cancer in service, continuous symptoms of bladder cancer after service separation, or manifestation of bladder cancer to a compensable degree within one year of service separation, the criteria for service connection for bladder cancer on a presumptive basis are not met. 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker, 708 F.3d at 1338-40. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine; however, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against this theory of the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. With regard to the Veteran's contention that bladder cancer was caused by asbestos exposure in service, there is no specific statutory guidance with regard to asbestos related claims, nor has the VA Secretary promulgated any specific regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, para. 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chapter 2, Section C, Topic 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The Court has held that VA must analyze claims for entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols provided in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Subpart ii of M21-1MR Part IV lists some of the major occupations involving exposure to asbestos, including mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. High exposure to respirable (airborne) asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9; see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). VA satisfied the above requirements by obtaining the Veteran's service treatment records, service personnel records, and testimony from the Veteran regarding duties in service. It should be noted that the pertinent parts of the Manual guidelines on service connection in asbestos-related cases must be considered by the Board in adjudicating asbestos-related claims. See VAOPGCPREC 4-2000. The Board points out that the Manual provisions do not create a presumption that a veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002). After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran was in fact exposed to asbestos in service. As noted above, the Veteran contends that he was exposed to asbestos while serving in an old warehouse during service in Alaska. Service personnel records reflect active duty service in Alaska from November 1962 to January 1965. During this time, the Veteran served as a passenger and household goods specialist. See DD Form 214; Chronological Listing of Service report. Performance reports show that, as a passenger and household goods specialist, the Veteran was responsible for operating a warehouse forklift, loading freight shipments, and checking received property. During the May 2015 Board hearing, the Veteran testified that duties also included work on an assembly line. See Board hearing transcript at 4. The evidence does not show that the Veteran had duties more common to asbestos exposure, such as mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, or military equipment. In written statements and oral testimony, including when specifically asked during the May 2015 Board hearing, the Veteran has not identified a specific source or location of asbestos within the warehouse. See id. at 5. Other than the bladder cancer, the medical evidence does not show any asbestos-related illnesses such as interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, or cancer of the lung, gastrointestinal tract, larynx, pharynx. The private treatment records documenting treatment for bladder cancer to do not contain any suggestion from private medical examiners that the bladder cancer was caused by asbestos exposure. Service treatment records do not show, and the Veteran does not assert, that symptoms of a bladder disorder began in service. With respect to the Veteran's assertions regarding the relationship of bladder cancer to service, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on such complex disorders as bladder cancer. See Jandreau at 1372 (recognizing a lay person is not competent to identify a disorder as complex as cancer); see also Barr, 21 Vet. App. at 312 (lay testimony is competent to establish the presence of observable symptomatology). As a lay person, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of the bladder cancer. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Rendering an etiology opinion in this cases requires knowledge of the various causes or risk factors for bladder cancer, and knowledge of periods of incubation or disease processes. The questions of causation, in this case, involve complex medical questions that the Veteran is not competent to address. Jandreau at 1372. As such, the Veteran's purported medical opinion relating bladder cancer to asbestos exposure, especially when actual asbestos exposure has not been shown by the evidence, does not constitute competent medical evidence and lacks probative value. For the reasons outlined above, the Board finds that the Veteran was not exposed to asbestos in service. Asbestos exposure was the only theory of service connection advanced by the Veteran, and as discussed above, symptoms of bladder cancer were not chronic in service, were not continuous after service separation, and did not manifest a compensable degree within one year of service separation. For these reasons, the Board finds that the current residuals of bladder cancer disability is not related to service. 38 C.F.R. § 3.303(d). Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The United States Court of Appeals for Veterans' Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id.; 38 C.F.R. § 4.2. Initial Rating for Bilateral Hearing Loss Service connection for bilateral hearing loss was established in a July 2013 rating decision that assigned an initial noncompensable (0 percent) disability rating, effective March 20, 2012. The Veteran contends that a compensable disability rating is warranted based on the severity of the bilateral hearing loss, which makes it challenging to hear others talk unless the Veteran can see lips move. See, e.g., May 2015 Board hearing transcript at 8. For hearing loss claims, the Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average," as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). On review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period from March 20, 2012, the bilateral hearing loss has been manifested by no more than level II hearing in the right ear and level II hearing in the left ear, as determined by audiometric data and speech recognition scores. VA examined the bilateral hearing loss in July 2013, revealing puretone thresholds, in decibels (dB), as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 45 60 75 LEFT 35 40 45 65 75 For purposes of 38 C.F.R. § 4.85(d), the puretone threshold average for the right ear is 55 dB, and 56 dB for the left ear. Speech audiometry revealed speech recognition ability of 88 percent in both ears. Based on the audiometric data and speech recognition scores, no exceptional pattern of hearing impairment is shown in either ear. The Veteran reported difficulty understanding what people are saying unless they look at him face to face. Based on the July 2013 VA audiological examination report, both the right and left ears are measured as level II hearing, based on Table VI. Using these results in Table VII, the audiometric data and speech recognition scores support a noncompensable (0 percent) rating. The bilateral hearing loss was measured in October 2013 by a private audiologist. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 50 60 70 LEFT 35 30 50 60 70 For purposes of 38 C.F.R. § 4.85(d), the puretone threshold average for the right ear is 54 dB, and 53 dB for the left ear. Significantly, however, the October 2013 private audiologist did not measure speech recognition using the Maryland CNC word list. An examination for hearing impairment "must include a controlled speech discrimination test (Maryland CNC)" and a puretone audiometry test. 38 C.F.R. § 4.85(a). As noted above, Table VIA, for hearing impairment based only on the puretone threshold average will only be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86 as described above. 38 C.F.R. § 4.85(c). The Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 Hertz or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz; therefore, the exceptional hearing pattern is not met for bilateral hearing loss based on the October 2013 private audiometric numbers. 38 C.F.R. § 4.86. Given that the private October 2013 audiology examination report does not include Maryland CNC test results, does not have an examiner certification pursuant to 38 C.F.R. § 4.85(a), does not meet the requirements of 38 C.F.R. § 4.86, and includes puretone averages that are less favorable to the Veteran than the closest (July 2013) VA examination report's Maryland CNC word recognition scores, the Board finds that the October 2013 private audiologist report does not assist in substantiating the claim for a compensable initial rating for bilateral hearing loss. During the May 2015 Board hearing, the Veteran testified that bilateral hearing loss symptoms have worsened since the July 2013 VA audiological examination. See Board hearing transcript at 7-8. The Veteran explained that he uses high volumes on the television and radio, and that he continues to have difficulty understanding what people are saying unless they look at him face to face. See id. at 8. Less than five weeks later, the Veteran presented to a VA medical center (VAMC) for audiological testing in June 2015. The June 2015 VAMC audiology consult note indicates that the VA audiologist considered the Veteran's complaints of hearing worsening and use of hearing aids. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 40 55 70 LEFT 25 25 45 55 65 For purposes of 38 C.F.R. § 4.85(d), the puretone threshold average for the right ear is 46 dB, and 48 dB for the left ear. Speech audiometry revealed speech recognition ability of 84 percent in both ears, and the VA audiologist indicated that this represented "good speech recognition ability." Based on the audiometric data and speech recognition scores, no exceptional pattern of hearing impairment is shown in either ear. Based on the June 2015 VAMC audiology consult note, both the right and left ears are measured as level II hearing, based on Table VI. Using these results in Table VII, the audiometric data and speech recognition scores support a noncompensable (0 percent) rating. In sum, the audiometric data and speech recognition scores weigh against finding that a disability rating in excess of 0 percent is warranted for the initial rating period from March 20, 2012. Both times the bilateral hearing loss was measured by VA, the audiometric data and speech recognition scores were commensurate with a noncompensable disability rating. Although the Veteran reported difficulty understanding speech, audiometric testing and speech recognition scores are designed to measure this. Audiometric test scores are designed to measure the levels of sound recognition while speech recognition testing that specifically records failure to recognize words when audibly projected objectively quantifies words missed in speech (which includes conversation). As the preponderance of the evidence is against finding that the criteria for a compensable disability rating have been met or more nearly approximated, the benefit of doubt doctrine is not for application. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for extraschedular consideration is warranted for CAD or bilateral hearing loss for any part of the appeal period. 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. 38 C.F.R. § 3.321(b)(1) (2013); 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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that the schedular criteria are adequate to rate the bilateral hearing loss disability. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, and as measured by both audiological testing and speech recognition testing. The Veteran's complaints concern diminished auditory acuity and speech recognition. Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria. Moreover, the testing is to be performed without the use of hearing aids. See 38 C.F.R. § 4.85(a). The scores represent a rating made on the worst possible objective measure of performance. In other words, the Veteran does not have any symptoms from the service-connected hearing loss disability that are unusual or are different from those contemplated by the schedular rating criteria. 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. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, 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 diminished hearing ability is a disability picture that is considered in the current schedular rating criteria. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced; however, in this case, neither has the Veteran asserted, nor has the evidence of record suggested, any such combined effect of multiple service-connected disabilities to create such an exceptional circumstance. The other service-connected disability in this case is tinnitus. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the service-connected hearing loss, and referral for consideration of extraschedular rating is not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Lastly, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not alleged, and the evidence does not suggest, inability to secure or follow substantially gainful employment due to the service-connected bilateral hearing loss and tinnitus; therefore, the Board finds that the issue of entitlement to a TDIU has not been reasonably raised by the record or by the Veteran. See id. at 453-54. Earlier Effective Date for Tinnitus The Veteran asserts that an earlier effective date than March 20, 2012 for service connection for tinnitus is warranted based on inaction by a claim representative. Specifically, the Veteran contends that in 2006 an American Legion representative failed to submit to VA a claim for service connection for tinnitus on the Veteran's behalf. See Board hearing transcript at 13-14. Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In original service connection cases, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2014). A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p), 3.151 (2015). Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (2015). Such an informal claim must identify the benefit sought. Id. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2015). The Board finds that the Veteran filed a claim for service connection for tinnitus on March 20, 2012. In a March 20, 2012 VA Form 21-526, the Veteran claimed service connection for tinnitus. The Board next finds that there were no communications to VA received prior to March 20, 2012 that could be construed as a formal or informal claim for service connection for tinnitus. The Veteran does not contend that he submitted to VA written statements or medical evidence earlier than March 20, 2012 that may be construed as a formal or informal claim for service connection for tinnitus; instead, the Veteran reports that he submitted a claim for service connection for tinnitus to a regional American Legion representative in 2006, and that the American Legion representative did not submit the claim to VA as requested. See Board hearing transcript at 13-14; September 2013 VA Form 21-4138. Although the Board finds plausible the Veteran's statements regarding submission of paperwork to an American Legion officer, there is still no evidence of a claim filed with VA in 2006 or at any time thereafter prior to March 20, 2012. The Board must apply "the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'" See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992); see also McTighe v. Brown, 1 Vet. App. 29, 30 (1994) (payment of government benefits must be authorized by statute, so that even erroneous advice given by a government employee cannot be used to estop the government from denying benefits). In sum, it is undisputed that the claim for service connection for tinnitus was filed with VA on March 20, 2012. The Veteran's only contention for an effective date earlier than March 20, 2012 for service connection for tinnitus is that an American Legion representative failed to file a claim with VA. In this regard, the law is clear that no benefit may be paid before a claim is made. 38 U.S.C.A. § 5101 (West 2014); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) ("[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to . . . be paid under the laws administered by the Secretary"). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). Where, as here, the law, and not the evidence, is dispositive, the appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for bladder cancer, claimed as due to asbestos exposure, is denied. For the entire initial rating period from March 20, 2012, an initial disability rating in excess of 0 percent for bilateral hearing loss is denied. An earlier effective date than March 20, 2012 for the award of service connection for tinnitus is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs