Citation Nr: 1600255	
Decision Date: 01/05/16    Archive Date: 01/12/16

DOCKET NO.  09-32 057	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss.

2.  Entitlement to a disability rating higher than 10 percent for service-connected non-Hodgkin's lymphoma.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission 


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Berry, Counsel


INTRODUCTION

The Veteran served on active duty from October 1960 to December 1962.

He appealed to the Board of Veterans' Appeals (Board/BVA) from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  In particular, a December 2008 rating decision granted service connection for bilateral (i.e., left and right ear) hearing loss and an April 2009 rating decision granted service connection for non-Hodgkin's lymphoma.  Initial noncompensable ratings, so 0 percent ratings, were assigned for each of these disabilities.  He contested these initial ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999).

In an August 2011 rating decision since issued during the pendency of this appeal, the RO assigned a higher 10 percent initial rating for the non-Hodgkin's lymphoma as of the same retroactive effective date.  The Veteran continued to appeal for an even higher rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (the granting of a higher rating during the pendency of an appeal does not abrogate the appeal unless the Veteran expressly indicates he is satisfied or content with the new rating or receives the highest possible rating).  So these claims now concern whether he is entitled to an initial rating higher than 10 percent for his non-Hodgkin's lymphoma and an initial compensable rating for his bilateral hearing loss.

In April 2014, in support of these claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, i.e. at a Travel Board hearing.  A transcript of the hearing has been associated with the claims file, so is of record.

The Board remanded the claims to the Agency of Original Jurisdiction (AOJ) in December 2014 for further development - including especially to obtain all outstanding VA treatment records, if relevant, and to have the Veteran undergo another VA compensation examination reassessing the severity of these disabilities.  

He since has had these additional examinations in March 2015, but after considering the results, the Appeals Management Center (AMC) issued a Supplemental Statement of the Case (SSOC) in April 2015 continuing to deny the claims and returned them to the Board for further appellate consideration.

Regrettably, however, still further development is required concerning the claim of entitlement to a higher initial rating for the non-Hodgkin's lymphoma, so the Board is again REMANDING this claim to the AOJ.  However, the Board is going ahead and deciding the claim for a higher initial rating for the bilateral hearing loss.


FINDING OF FACT

At worst, the Veteran has Level II hearing loss in both ears, so bilaterally.


CONCLUSION OF LAW

The criteria are not met for an initial compensable disability rating for the Veteran's bilateral hearing loss.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

VA has duties to notify and assist a claimant in fully developing a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).  More specifically, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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 obtain; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b).  Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

But with respect to the Veteran's increased-rating claim for bilateral hearing loss, he is appealing the initial rating assignment for this service-connected disability.  The December 2008 rating decision granted his claim of entitlement to service connection for this disability and, therefore, his claim, at least as it arose in its initial context, has been substantiated, so proven.  His filing of a Notice of Disagreement (NOD) in response to the initial rating assigned for this disability does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  38 C.F.R. § 3.159(b)(3).  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  Rather, his appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103.  According to 38 U.S.C.A. § 7105(d), upon receipt of an NOD in response to a decision on a claim, the AOJ must take development or review action it deems proper under applicable regulations and issue a Statement of the Case (SOC) if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the NOD.  If VA receives an NOD in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue an SOC if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly-raised issue.  See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2015).

Accordingly, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law.  This has been accomplished in the July 2009 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," which sets forth the relevant diagnostic code for rating bilateral hearing loss - including a description of the rating formulas for all possible schedular ratings under this diagnostic code.  Therefore, the Veteran was informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned.  

Regarding VA's duty to assist, the Board finds that VA has fulfilled this additional obligation, as well, by making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim.  The claims file contains his service treatment records (STRs), VA treatment records, VA examination reports dated in November 2008, June 2011, September 2012, December 2013, and March 2015, personal lay statements from him, and a transcript of his April 2014 hearing before the Board.

The VA audiological examination reports document a history from the Veteran of his hearing loss and an objective physical evaluation.  The examiners recorded the audiogram results and the Maryland CNC speech recognition threshold for each ear.  With respect to VA audiological examinations, a VA audiologist, in addition to dictating objective test results, must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  To this end, the VA examiners in November 2008, June 2011, and April 2015 described the functional effects caused by the hearing disability in their reports.  The VA examiners in November 2008, December 2013, and April 2015 reviewed the Veteran's claims file.  However, it is unclear whether the June 2011 and September 2012 VA examiners reviewed the claims file.  Nevertheless, when analyzing claims for an increased disability rating, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Furthermore, the Veteran has not asserted and the claims file does not show that evidence in the claims file would have affected the observations of the examiners.  See Mariano v. Principi, 17 Vet. App. 305, 3011-12 (2003) (when reviewing the claims file would not affect the observations of an examiner, the failure to review it does not prejudice the claimant).  The examiners were aware of the pertinent history of the Veteran's hearing loss based on his statements during the course of the examination.  Consequently, the VA examinations are adequate for rating purposes, certainly when considered in combination, such that additional examination is not required.  38 C.F.R. § 4.2.

In addition, as noted in the INTRODUCTION, this claim was previously remanded in December 2014 in order to obtain all outstanding pertinent VA treatment records since October 2012 and to schedule a VA audiological examination reassessing the severity of this service-connected disability.  As a result of that additional development of the claim, VA treatment records from October 2012 to January 2015 were obtained and associated with the claims file so they may be considered.  As well, the claims file contains a VA examination report dated in April 2015 providing the information needed to reassess the severity of the Veteran's hearing loss since the initial grant of service connection, including in terms of the functional effects caused by this disability.  This examination report specifically addresses the issues the Board raised, particularly insofar as discussing the severity of this disability in relation to the applicable rating criteria.  Accordingly, there has been compliance - certainly substantial compliance - with the Board's April 2014 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Moreover, the claims file contains the Veteran's statements in support of his claim, both in written form and the oral testimony he offered under oath during his Travel Board hearing.  Regarding the latter, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court/CAVC) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position.  Here, to this end, during the hearing this presiding Veterans Law Judge indicated the proceeding would focus on the issue of alleged entitlement to a higher rating for the bilateral hearing loss and questioned the Veteran as to whether he understood what elements were lacking to substantiate the claim.  He was assisted at the hearing by an accredited representative of the Texas Veterans Commission (TVC).  The representative and presiding Veterans Law Judge asked questions relevant to assessing the severity of this service-connected disability in relation to the applicable rating criteria.  And in the responses, the Veteran evidenced his actual knowledge of these requirements and of the type of evidence and information needed to substantiate this claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  The hearing focused on the elements necessary to substantiate the claim.  Neither the representative nor the Veteran has suggested any deficiency in the conducting of the hearing.  Therefore, the Board finds that, consistent with Bryant, the presiding Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The Veteran has not identified and the record does not otherwise indicate any existing pertinent evidence that has not been obtained and that is obtainable.  The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration.  Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. 

II.  Criteria and Analysis

The Veteran filed a service-connection claim for bilateral hearing loss in August 2006.  And, as already alluded to, the RO subsequently granted the claim in the December 2008 decision at issue and assigned an initial noncompensable, so 0 percent, disability rating retroactively effective from August 30, 2006, so back to the date of receipt of this claim.  The Veteran believes this disability is deserving of a higher initial rating owing to its severity.


Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015).  Where there is a question as to which of two evaluations shall be applied, 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 (2015).  All reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2015).  When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt.  38 U.S.C.A. § 5107(b).   

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  But where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Thus, consideration must be given as to whether a "staged" rating should be assigned to compensate the Veteran for occasions since the effective date of his award when his disability may have been more severe than at others.  Id., at 125-26.

Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity.  Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)).  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria).  The provisions of 38 C.F.R. § 4.85 (2015) establish eleven auditory acuity levels from I to XI, so ranging from essentially normal hearing to profound deafness.  If hearing loss is service connected in only one ear, meaning unilaterally, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I.  38 C.F.R. § 4.85(f).  This assumes the exception found at 38 C.F.R. § 3.383(a)(3) does not apply, which instead requires hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of non-service-connected disability that meets the provisions of 38 C.F.R. § 3.385 in the other ear, meaning satisfies the threshold minimum requirements to be considered an actual ratable disability by VA standards.  Assuming § 3.383(a)(3) is inapplicable, Tables VI and VII as set forth in section 4.85(h) are then used to calculate the rating to be assigned.  

When there are exceptional patterns of hearing impairment, the schedular criteria stipulate 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.  38 C.F.R. § 4.86(a) (2015).  Each ear is evaluated separately.  Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86(b).  The numeral will then be elevated to the next higher Roman numeral.  Id.  Each ear will be evaluated separately.  

Turning now to the specific facts of this particular case.  The Veteran underwent a VA audiology examination in November 2008.  The VA examination report shows he had 100 percent speech recognition in his right ear.  He exhibited puretone thresholds in the right ear of 25 dB at 1000 Hz, 35 dB at 2000 Hz, 30 dB at 3000 Hz and 30 dB at 4000 Hz.  The average decibel loss for the right ear was 30 dB.  He had 94 percent speech recognition in his left ear.  He exhibited puretone thresholds in the left ear of 25 dB at 1000 Hz, 35 dB at 2000 Hz, 30 dB at 3000 Hz and 35 dB at 4000 Hz.  The average decibel loss for the left ear was 31 dB.  


The Veteran did not meet the exception requirements for hearing impairment under 38 C.F.R. § 4.86.  The examiner also did not certify that the use of speech discrimination test was inappropriate.  Therefore, the numerical hearing impairment is determined only by Table VI.  The Veteran's hearing acuity in both ears is assigned to Level I.  Diagnostic Code 6100, Table VII provides a 0 percent (noncompensable) disability rating for the hearing impairment demonstrated by the Veteran during that November 2008 VA examination.

The Veteran was provided another VA audiological examination in June 2011.  His speech recognition in the right ear was 88 percent.  His puretone thresholds in the right ear was 25 dB at 1000 Hz, 35 dB at 2000 Hz, 35 dB at 3000 Hz and 40 dB at 4000 Hz.  The average decibel loss for the right ear was 33.75 dB.  He had 88 percent speech recognition in his left ear.  He exhibited puretone thresholds in the left ear of 30 dB at 1000 Hz, 40 dB at 2000 Hz, 40 dB at 3000 Hz and 45 dB at 4000 Hz.  The average decibel loss for the left ear was 38.75 dB.  

The Veteran did not meet the exception requirements for hearing impairment under 38 C.F.R. § 4.86 and the examiner did not certify that the use of speech discrimination test was inappropriate.  Accordingly, the numerical hearing impairment is determined only by Table VI.  The Veteran's hearing acuity in both ears is assigned to Level II.  Diagnostic Code 6100, Table VII provides a 0 percent (noncompensable) disability rating for his hearing impairment documented at the June 2011 VA examination.

A VA audiological examination conducted in September 2012 shows the Veteran's speech recognition in the right ear was 84 percent.  His puretone thresholds in the right ear was 35 dB at 1000 Hz, 40 dB at 2000 Hz, 40 dB at 3000 Hz and 35 dB at 4000 Hz.  The average decibel loss for the right ear was 37.5 dB.  He had 84 percent speech recognition in his left ear.  He exhibited puretone thresholds in the left ear of 40 dB at 1000 Hz, 35 dB at 2000 Hz, 40 dB at 3000 Hz and 40 dB at 4000 Hz.  The average decibel loss for the left ear was 38.75 dB.  


The Veteran did not meet the exception requirements for hearing impairment under 38 C.F.R. § 4.86.  The examiner also did not certify that the use of speech discrimination test was inappropriate.  Thus, the numerical hearing impairment is determined only by Table VI.  The Veteran's hearing acuity in both ears is assigned to Level II.  Diagnostic Code 6100, Table VII provides a 0 percent (i.e., noncompensable) disability rating for the hearing impairment demonstrated by the Veteran during that September 2012 VA examination.

A December 2013 VA audiological examination shows that the Veteran's speech recognition in the right ear was 100 percent.  His puretone thresholds in the right ear was 10 dB at 1000 Hz, 15 dB at 2000 Hz, 15 dB at 3000 Hz and 25 dB at 4000 Hz.  The average decibel loss for the right ear was 16 dB.  He had 100 percent speech recognition in his left ear.  He had puretone thresholds in the left ear of 10 dB at 1000 Hz, 15 dB at 2000 Hz, 15 dB at 3000 Hz and 25 dB at 4000 Hz.  The average decibel loss for the left ear was 16 dB.  

The Veteran did not meet the exception requirements for hearing impairment under 38 C.F.R. § 4.86 and the examiner did not certify that the use of speech discrimination test was inappropriate.  Therefore, the numerical hearing impairment is determined only by Table VI.  The Veteran's hearing acuity in both ears is assigned to Level I.  Diagnostic Code 6100, Table VII provides a 0 percent (noncompensable) disability rating for the Veteran's hearing impairment documented at the December 2013 VA examination.

The Veteran was provided with the most recent VA audiological examination in March 2015, as mentioned on remand.  His speech recognition in the right ear was 100 percent.  His puretone thresholds in the right ear was 30 dB at 1000 Hz, 30 dB at 2000 Hz, 35 dB at 3000 Hz and 45 dB at 4000 Hz.  The average decibel loss for the right ear was 35 dB.  He had 96 percent speech recognition in his left ear.  He puretone thresholds in the left ear of 30 dB at 1000 Hz, 30 dB at 2000 Hz, 35 dB at 3000 Hz and 45 dB at 4000 Hz.  The average decibel loss for the left ear was 35 dB.  


The Veteran did not meet the exception requirements for hearing impairment under 38 C.F.R. § 4.86 and the examiner did not certify that the use of speech discrimination test was inappropriate.  Therefore, the numerical hearing impairment is determined only by Table VI.  The Veteran's hearing acuity in both ears is assigned to Level I.  Diagnostic Code 6100, Table VII provides a 0 percent (noncompensable) disability rating for the hearing impairment demonstrated by the Veteran during that most recent March 2015 VA examination.

That said, the examiner ultimately determined that the test results during that March 2015 VA examination were invalid for rating purposes.  He explained that the test, re-test reliability was very poor.  The Veteran's threshold responses changed 15-20 dBHL from one time to another.  This is not normal test variability.  The Veteran had to be re-instructed multiple times.  It was the examiner's professional opinion that the Veteran was not being truthful in his responses.  The thresholds that the examiner reported were the best results that could be obtained.

In conclusion, the benefit of the doubt is to be resolved in the Veteran's favor in cases where there is an approximate balance of positive and negative evidence in regards to a material issue.  But the Board must also assess the Veteran's credibility, and the information the most recent VA compensation examiner provided concerning the Veteran's seemingly lack of effort in truly responding to the acoustical cues tends to undermine his credibility.  This, in turn, lessens the probative value of his lay statements and testimony regarding the purported severity of his bilateral hearing loss.  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted by and on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence').  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also 

the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

Because of the Veteran seemingly attempting to manipulate the results of the most recent testing, in his favor, and given the results of the prior testing in years past showing, at worst, level II hearing loss in each ear, the Board finds that the preponderance of the evidence is against the claim for a compensable initial rating for this service-connected disability.  Moreover, he has not met the requirements for a compensable rating at any time since the filing of his claim for this disability, so the Board cannot "stage" his rating under Fenderson.

According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO or Board may refer a claim to the Under Secretary for Benefits or to the Director of the Compensation and Pension (C&P) Service for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2015).  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); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  

According to the holdings in 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 the service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it 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 the Veteran's disability picture requires the assignment of an extraschedular rating.

Here, though, the evidence does not show such an exceptional disability picture that the available schedular evaluation for bilateral hearing loss 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 hearing impairment shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  His hearing impairment does not cause marked interference with employment, meaning above and beyond that contemplated by the scheduler rating assigned.  38 C.F.R. §§ 4.1, 4.15.  In addition, the evidence reveals that his bilateral hearing loss has not necessitated any frequent periods of hospitalization or otherwise rendered impracticable the application of the regular schedular standards.  Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 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 disability rating based on unemployability (TDIU) due to service- connected disability, 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 and parcel of the claim for an increased rating.  In this particular case at hand, however, the Veteran has not argued, and the record does not otherwise reflect, that his bilateral hearing loss disability renders him unemployable, meaning incapable of obtaining or maintaining employment that could be considered substantially gainful versus just marginal in comparison.  38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, and 4.19.  Accordingly, the Board concludes that a derivative claim for a TDIU has not been raised.  See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011).


ORDER

The claim of entitlement to an initial compensable disability rating for bilateral hearing loss is denied. 


REMAND

The Board sincerely regrets the additional delay that inevitably will result from again remanding - rather than deciding - the remaining initial increased rating claim for non-Hodgkin's lymphoma, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration.

The Board as mentioned previously remanded this claim in December 2014, partly to reassess the severity of this service-connected disability, including in terms of identifying any consequent residuals.  Under the applicable Diagnostic Code 7715, a 100 percent rating is warranted with active disease or during a treatment phase.  A Note in Diagnostic Code 7715 indicates the 100 percent rating shall continue beyond the cessation of any surgical, radiation antmeoplastic, chemotherapy or other therapeutic procedures.  Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination.  If there has been no local recurrence or metastasis the disease is rated based on its residuals.  38 C F R §4 118, Diagnostic Code 7715 (2015).  

The evidence suggests the Veteran's non-Hodgkin's lymphoma has been in remission for many years.  But he has been assigned a 10 percent rating, nevertheless, for his chronic residual weakness that has been rated analogous to anemia.  38 C.F.R. § 4.20.  During the April 2014 hearing, the Veteran also testified to experiencing such additional symptoms as decreased appetite, weight loss chills, rash, fever, headaches, light-headedness, and shortness of breath.  


Following the prior remand in December 2014, the Veteran was provided a VA compensation examination in April 2015.  The examiner documented that the conditions, complications, and/or residuals due to the non-Hodgkin's lymphoma include weakness, easy fatigability, light-headedness, shortness of breath, headaches, dyspnea on mild exertion, and dyspnea at rest.  The examiner did not, however, document the frequency or severity of these symptoms.  And as an unfortunate consequence, the Board finds there is not enough detail regarding these residuals to determine whether they should be evaluated under rating criteria so as to, in turn, result in additional compensation.  The Board therefore is requesting additional medical comment in the way of a supplemental opinion.

All more recent treatment records also should be obtained and considered.

Accordingly, this claim is again REMANDED for the following still further development and consideration:

1. Obtain all outstanding, pertinent, medical treatment records, including those from the local VA Medical Center (VAMC) in Houston, Texas, dated since January 2015.  All other treatment records the Veteran identifies as potentially relevant should be obtained, as well, and associated with the claims file for consideration.  The amount of effort needed to be expended depends on who has custody of the records.  If they are not in the custody of a Federal department or agency, then 38 C F R § 3 159(c)(1) controls, whereas subpart (c)(2) controls if they are.  If these efforts yield negative results, a notation to that effect must be made in the file and the Veteran appropriately notified in accordance with 38 C FR § 3 159(e)(1).

2. 
Upon receipt of all additional records, schedule another VA compensation examination again reassessing the severity of the Veteran's service-connected non-Hodgkin's lymphoma.  The claims file, including a complete copy of this decision and remand, must be provided to and reviewed by the examiner in conjunction with the examination.  All indicated tests and studies should be performed, and all findings set forth in detail.  The examiner is specifically asked to fully describe the residuals of the Veteran's non-Hodgkin's lymphoma, including especially in relation to his complaints of decreased-appetite weight loss, chills rash, fever, headaches, light-headedness and shortness of breath.  As importantly, however, the examiner must additionally discuss the frequency and severity of these and any other residuals identified, as well as their functional effects, including any impact on the Veteran's employability and daily activities.

The examiner must provide explanatory rationale for all opinions expressed, preferably citing to specific evidence in the file or examination results supporting conclusions.

3. Then readjudicate this claim in light of this and all other additional evidence.  If this claim continues to be denied or is not granted to the Veteran's satisfaction, send him and his representative another Supplemental SOC (SSOC) and give them time to submit additional evidence and/or argument in response to it before returning the file to the Board for further appellate consideration of this claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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 Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs