Citation Nr: 1602877	
Decision Date: 01/29/16    Archive Date: 02/05/16

DOCKET NO.  09-18 795	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

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

2.  Entitlement to service connection for a back disability.

3.  Entitlement to service connection for a cardiac disability, to include ischemic heart disease, claimed as due to exposure to herbicides.

4.  Entitlement to service connection for hypertension, to include as secondary to service connected diabetes mellitus, type II, and claimed as due to exposure to herbicides. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 to April 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and March 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

The August 2008 rating decision granted entitlement to service connection for bilateral hearing loss and assigned a 0 percent (noncompensable) rating effective August 23, 2007.  It also denied entitlement to service connection for a back disability and hypertension.  A notice of disagreement with the rating assigned for bilateral hearing loss and the denial of the service connection claims was received in October 2008, a statement of the case was issued in April 2009, and a substantive appeal was received in May 2009.  

In his May 2009 substantive appeal, the Veteran requested that he be scheduled for a Board hearing in Washington, DC.  He withdrew this request in writing in August 2009.

The March 2011 rating decision denied entitlement to service connection for ischemic heart disease.  A notice of disagreement was received in August 2011, a statement of the case was issued in February 2012, and a substantive appeal was received in April 2012.  

In July 2012, the Board remanded this case for additional development, and the case has been returned for further appellate review.

The issues of entitlement to service connection for a cardiac disability and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss is manifested by no more than Level II hearing in the right ear and no more than Level I hearing in the left ear.

2.  The Veteran did not exhibit a back disability in service, arthritis of the spine did not manifest within one year of the Veteran's separation from service, and a back disability is not otherwise shown to be associated with his active service.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code 6100 (2015).  

2.  The criteria for establishing service connection for a back disability are not met.  38 U.S.C.A. §§ 1101, 1110, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims.  VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2014)).  In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2015)).

The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Dingess, supra; Pelegrini, supra.

The Board finds that the notification requirements of VCAA have been satisfied in this case.  In this regard, the Board notes an evidentiary development letter dated in August 2007 in which the RO advised the appellant of the evidence needed to substantiate his claim of entitlement to service connection for a back disability.  A letter issued in November 2007 advised the Veteran how to establish entitlement to service connection for a back disability and bilateral hearing loss.  The appellant was advised in these letters of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA.  These letters also advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claims, pursuant to the Court's holding in Dingess, supra.  

The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case.  38 U.S.C.A. §§ 5103 and 5103A.  Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issues on appeal has been obtained and associated with the claims folder.  In particular, the Board notes that the RO obtained service treatment records and VA and private medical records.  The Board notes that one purpose of the July 2012 Board remand was to obtain the Veteran's separation examination report.  This report was obtained on remand, and the Board finds that the Veteran's service treatment records are now complete.

The Board notes that among the private evidence of record is a November 2007 private audiometry examination report.  The Board notes, however, that in order for an audiometry examination to be valid for rating purposes, it must conform to the requirements of 38 C.F.R. § 3.385.  In relevant part, this regulation requires that the Maryland CNC be used to assess the Veteran's speech discrimination ability.  The private examination report of record does not reflect that such testing was used.  Therefore, the Board cannot use the results of the November 2007 audiometry examination to evaluate the severity of the Veteran's bilateral hearing loss.

The Board notes that the Veteran has not been provided with a VA examination for the claim of entitlement to service connection for a back disability.  However, as will be discussed in more detail below, the Board finds that an examination is not necessary to decide this claim due to a lack of evidence of an in-service back injury or disability and an absence of competent evidence of nexus.  Therefore, a VA examination is not warranted for this claim.

The RO also arranged for the Veteran to undergo VA examinations in connection with his bilateral hearing loss claim in July 2008, December 2009, and January 2013.  The Board finds that the resulting reports are adequate for the purpose of determining entitlement to an increased rating.  The examiners reviewed the record and elicited from the Veteran his history of complaints and symptoms.  The examination reports provide pertinent clinical findings detailing the results of the examinations to allow for effective evaluation of the Veteran's disability.  For these reasons, the Board concludes that the reports in this case provide an adequate basis for a decision.

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  As will be discussed in more detail below, the Board observes that the examination reports describe the Veteran's reported functional impairment.  Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the examiners discussed the functional effects of the Veteran's hearing problems in the examination reports.  For these reasons, the Board concludes that the reports of the July 2008, December 2009, and January 2013 examination reports provide an adequate basis for a decision.  

II.  Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2015).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127.

In evaluating hearing loss, disability ratings 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, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.

Table VIA is used when the examiner certifies that the use of 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.  38 C.F.R. § 4.85(c).  When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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).  Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I, for essentially normal acuity, through XI, for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

The Veteran underwent VA examinations in July 2008, December 2009, and January 2013.

The July 2008 VA examination report shows puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
20
55
60
LEFT
5
15
30
55
55

The puretone threshold average was 37.5 decibels in the right ear and 38.75 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear.  He reported that his situation of greatest difficulty is when he is in a noisy environment.  The above audiological findings show Level I hearing acuity in each ear under Table VI.  Under Table VII, these findings do not warrant a compensable rating.

The December 2009 VA examination report shows puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
55
60
LEFT
15
20
35
55
55

The puretone threshold average was 41.25 decibels in the right ear and 37.5 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear.  The Veteran reported that he sometimes has difficulty understanding speech, especially in the presence of background noise.  He reported that the hearing loss also decreases his enjoyment of watching television.  The above audiological findings show Level II hearing acuity in the right ear and Level I hearing acuity in the left ear under Table VI.  Under Table VII, these findings do not warrant a compensable rating.

The January 2013 VA examination report shows puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
55
60
LEFT
20
20
40
55
60

The puretone threshold average was 38 decibels in the right ear and 44 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 92 percent each ear.  He reported that his current hearing loss makes it difficult for him to understand over the telephone.  He also reported that he has a hard time understanding speech in the presence of background noise or when there are multiple speakers.  He has also noticed increased difficulty hearing and understanding high-pitched female voices.  The above audiological findings show Level I hearing acuity in each ear under Table VI.  Under Table VII, these findings do not warrant a compensable rating.

The Board acknowledges the contentions put forth by the Veteran regarding the impact his service-connected bilateral hearing loss has on his ability to understand speech, including over the telephone, when there is background noise, or in the presence of multiple speakers.  However, as noted previously, because disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign.  Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100.  Therefore, when applying the audiological examination test results, the Board is compelled to conclude that the preponderance of the evidence is against granting entitlement to a compensable disability rating at any point during this appeal.  There is no competent evidence of record to refute the examination findings.

The Board has considered the doctrine of reasonable doubt.   However, as the preponderance of the evidence is against this claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, entitlement to a compensable disability rating for bilateral hearing loss is not warranted during any portion of this appeal.

III.  Service Connection

The Veteran has claimed entitlement to service connection for a low back disability.  He essentially contends that this disability is related to heavy lifting he performed during service, to include while serving as a mortarman in Vietnam.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in0service disease or injury.  See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service.  38 U.S.C.A. §§ 1101 , 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  In some instances, service connection for arthritis may be established based on a continuity of symptomatology from the time of manifestation.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a) ).

In terms of in-service disability, the Veteran's service treatment records reflect that his spine was found to be clinically normal when examined at his January 1969 enlistment examination and his March 1971 release from active duty examination.  He expressly denied any history of, or current, recurrent back pain on his January 1969 enlistment medical history report.  Otherwise, the Veteran's service treatment records reflect that he neither complained of, nor was treated for, symptoms associated with his back during service.

On his August 2007 claims form, the Veteran reported that his back disability began in 1984.  He reported on a September 2007 personal statement that he was hospitalized for several weeks in 1984 and stayed in traction at home for six weeks under his doctor's care.  On his October 2008 notice of disagreement, the Veteran stated that he has very severe back problems that cause pain in his feet and legs that he believed were "probably due to the heavy lifting in military service and excessive time on my feet and legs."  

An October 1984 private medical record notes that the Veteran's low back has been bothering him for the last two weeks.  He was assessed as having "[l]ow back pain with probable disc at L5 S1 level."  It was directed that he be scheduled for a CAT scan of the lower back.  He was prescribed Nalfon and was instructed to do low back exercises.  A November 1984 record notes that the Veteran "was at work today, developed acute onset of lower back discomfort."  On examination, he had tenderness of the low back, and he was assessed as having a herniated disc.  A December 1984 record notes that the Veteran is "still having back discomfort."  It was noted that it was felt he had "a disc, has not really responded well to conservative treatment."  It was noted that he was to return after the first of the year and that they "[p]robably will send to V.A. at that time."  A January 1985 record notes that the Veteran's leg and back were doing much better.  He was assessed as having low back pain syndrome.  A December 1985 record notes that the Veteran's leg and back were "doing remarkably well."  A December 1986 record notes that the Veteran "has been doing exercises and taking Nalfon for his back."  A January 1987 record notes that the Veteran's back was feeling better.  

The Board finds that, based on the above, entitlement to service connection for a back disability is not warranted.  The Board finds that the Veteran's service treatment records are complete, as they contain the January 1969 enlistment examination report and the March 1971 release from active duty examination report and records from in between those two examinations.  The Board notes that the Veteran's service treatment records show that he did not suffer a back injury in service, and that the Veteran's spine was clinically normal at the time of the March 1971 examination that was conducted at the time of his release from active duty.  

Moreover, the Veteran has not contended at any point during this appeal that he suffered a back injury in service, or that he sought treatment for complaints related to his back.  On his August 2007 claim form, he reported an onset of a back disability in 1984, and this account is corroborated by the October 1984 private medical record noting that the Veteran had reported a two-week history of back pain.  As noted above, the Veteran separated from service in April 1971, which is more than 13 years prior to his first reports of back pain.  The Board further notes that evidence of a prolonged period without medical complaint, and the amount of time that has elapsed since military service, can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333   (Fed. Cir. 2000).

The Board further notes that no medical professional has rendered an opinion linking any current back disability with his military service.  Rather, the only opinion of record that supports the Veteran's claim comes from the Veteran himself, who believes there is a link between his current back disability and his military duties, in particular his activities of heavy lifting.  The Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters.  A lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions.  See Jandreau v. Nicholson, 492 F.3d 1372   (Fed. Cir. 2007).  However, as a layperson, the Veteran is not competent to offer testimony on the medical question presented here as to whether his back disability which first manifested approximately 13 years following service, was related to in-service activities.

The Board notes that the Veteran has not alleged that he currently has arthritis of the spine, and the evidence of record does not actually pertain to the question of a current back disability diagnosis.  In any event, the Board finds that, in the absence of an arthritis diagnosis in service or within one year of separation from service, and in the absence of any allegation of continuity of symptomatology on the Veteran's part from service (or the one-year presumptive period) to the present, presumptive service connection based on the presence of a chronic disability is not warranted.

In summary, the Board finds that a preponderance of the evidence is against finding a link between any current back disability and the Veteran's military service.  The Board has considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against this claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49   (1990).  Accordingly, entitlement to service connection for a back disability is not warranted.



ORDER

Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss is denied.

Entitlement to service connection for a back disability is denied.


REMAND

The Veteran has also claimed entitlement to service connection for hypertension and for a cardiac disability, claimed as ischemic heart disease.  In pertinent part, the Veteran has claimed that these disabilities have been incurred as a result of his in-service exposure to Agent Orange.  The Board finds that a remand of these claims is required for additional development before they may be properly adjudicated.  

First, multiple VA medical records dated in July 2014 note that the Veteran sees a non-VA cardiologist.  The Veteran has submitted two records from Kentucky Cardiology PLLC, but no attempt has yet been made to obtain the complete set of records from this facility or from any private cardiologist.  Because these records are potentially relevant to both the hypertension and the cardiac disability (to include ischemic heart disease) claims, the Board finds it necessary to remand those claims in order to attempt to obtain such evidence.

Second, the Board finds that a remand of the hypertension claim is necessary in order to obtain an addendum to the otherwise adequate VA examination reports of record.  The Board notes that, collectively, the VA examination reports dated in December 2007, October 2009, and March 2013 offer adequate opinions with respect to whether the Veteran's hypertension was caused or aggravated by his military service, to include by his service-connected diabetes mellitus.  None of these reports, however, opines as to the Veteran's contention that his hypertension is related to his conceded in-service exposure to Agent Orange.  

The Board notes that the National Academy of Sciences Institute of Medicine's Veterans and Agent Orange: Update 2010 (2010 Update) concluded that there was limited or suggestive evidence of an association between exposure to Agent Orange and hypertension.  See Nat'l. Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011).  With respect to the phrase "limited or suggestive evidence or an association," the Secretary of Veterans Affairs has defined this to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding [cannot] be ruled out with confidence."  See 75 Fed. Reg. 81,332 , 81, 333 (Dec. 27, 2010). 

Given that the medical evidence suggests an association between herbicide exposure and hypertension, it remains unclear to the Board whether the Veteran's hypertension is related to his conceded in-service exposure to herbicide agents.  Therefore, the Board finds that VA should obtain a medical opinion concerning whether the Veteran's hypertension is related to exposure to Agent Orange.  

Finally, on remand, all outstanding VA medical records should be obtained and associated with the claims file.   

Accordingly, the case is REMANDED for the following action:

1.  Obtain copies of all of the Veteran's outstanding VA medical records and ensure that those copies are associated with the claims file. 

2.  Ask the Veteran to fill out the appropriate authorization to allow VA to obtain any outstanding private cardiology records, to include those from Kentucky Cardiology PLLC.  The Veteran should also be notified that he may submit these records himself.  After securing any necessary releases, request any identified records.  If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified.  

3.  Following completion of the above, return the claims folder to the January 2013 examiner or to another qualified examiner.

The examiner is asked to review the record and to provide an opinion addressing the following question: is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is related to his conceded in-service exposure to herbicide agents?  In making this assessment, the examiner is to consider the National Academy of Sciences Institute of Medicine's Veterans and Agent Orange: Update 2010 (2010 Update) and any other pertinent medical data and/or medical literature, which may reasonably illuminate the medical analysis in the study of this case.  The examiner should provide a rationale that fully explains the basis for the conclusions reached.

If it is determined that another examination is required in order to render the requested opinion, arrange for the Veteran to undergo a VA examination by an appropriate examiner to determine whether the Veteran's hypertension is at least as likely as not (a 50 percent probability or greater) related to his conceded in-service herbicide exposure.  The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran.  Any tests and studies deemed necessary should be conducted.  All findings should be reported in detail.  

4.  After the development requested above has been completed, again review the record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  Thereafter, the case should be returned to the Board, if in order.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs