Citation Nr: 1605219	
Decision Date: 02/10/16    Archive Date: 02/18/16

DOCKET NO.  06-07 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for radiation skin burns, dyschromia, depression, and anxiety due to ultraviolet light therapy treatment rendered at a VA healthcare facility.

2. Entitlement to service connection for a genitourinary disorder, including prostatitis and urethritis.

3. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected hearing loss, tinnitus, and/or allergic rhinitis.

4. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected allergic rhinitis.

5. Entitlement to service connection for Meniere's syndrome, to include as secondary to service-connected hearing loss, tinnitus, and/or allergic rhinitis.

6. Entitlement to service connection for vertigo, to include as secondary to service-connected hearing loss, tinnitus, and/or allergic rhinitis.

7. Entitlement to service connection for hemorrhoids.

8. Entitlement to service connection for anal fissures.

9. Entitlement to an increased rating for scar hyperesthesia, status post ganglion cyst with residuals of decreased range of motion of the right wrist and decreased strength of the right wrist and hand, rated as 20 percent disabling from February 15, 1989 to November 15, 2009, and as 40 percent disabling from November 16, 2009 forward.

10. Entitlement to an initial compensable disability rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel


INTRODUCTION

The Veteran had active military service from July 1962 to July 1965.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of the Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. It was last before the Board in May 2012, when the Board granted service connection for right ear hearing loss and remanded the remaining issues for further development.

The procedural history of this case is complex and was discussed in the May 2012 Board Decision. To reiterate, the Veteran submitted a claim for an increased disability rating for his service-connected right wrist disorder in 1989. The claim was perfected on appeal and the Board remanded it for further development in April 1991. In February 1993, during the pendency of the appeal, the RO granted a higher 20 percent disability rating, effective as of February 1989. In a June 1993 statement, the Veteran continued to express disagreement with the assigned rating. In a June 2010 rating decision, the RO awarded a 40 percent disability rating for a right wrist disorder effective November 16, 2009. The Veteran disagreed with the effective date assigned. However, the increased rating claim filed in 1989 remains on appeal because the staged ratings before and since November 16, 2009 are not grants of the maximum benefits allowable. AB v. Brown, 6 Vet. App. 35, 38 (1993); Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the issue on appeal has been recharacterized to reflect consideration of whether a higher rating is warranted for the right wrist disorder at any point during the appellate period.

The claims for service connection for a genitourinary disorder, including prostatitis and urethritis; an acquired psychiatric disorder; and obstructive sleep apnea were characterized by the RO as previously denied claims requiring new and material evidence. See 38 C.F.R. § 3.156(a). However, as discussed in the May 2012 Board Decision, the previous denials of these claims were not final, therefore new and material evidence was not required. See May 2012 Board Decision.

The Veteran perfected an appeal for a compensable disability rating for left ear hearing loss and service connection for right ear hearing loss. See July 2010 Substantive Appeal. However, the May 2012 Board Decision granted right ear hearing loss, therefore the issues have been combined as a claim for a compensable disability rating for bilateral hearing loss. See May 2012 Board Decision. Moreover, as discussed in the Board's May 2012 decision, because the RO never adjudicated the Veteran's original claim for right ear hearing loss in the May 1974 decision granting left ear hearing loss, this is a claim for a higher initial rating. See id.; see also May 1974 Rating Decision.

The Veteran had filed a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. However, in a May 2012 telephone conversation, he withdrew the claim. See May 2012 Report of General Information.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of the appeal should take into consideration the existence of the electronic record.

The issues of entitlement o service connection for an acquired psychiatric disorder and obstructive sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. There is no competent evidence to show that the VA administered three successive doses of ultraviolet light therapy treatment on April 2, 2010 and that additional disability resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or that additional disability occurred due to an event not reasonably foreseeable.

2. A genitourinary disorder, including prostatitis and urethritis, does not relate to service.

3. The Veteran has not been diagnosed as having Meniere's syndrome.

4. The Veteran has not been diagnosed as having vertigo; nor is vertigo a disability for VA purposes.

5. Hemorrhoids do not relate to service.

6. Anal fissures do not relate to service.

7. For the entire appellate period, the Veteran's scar hyperesthesia, status post ganglion cyst with residuals of decreased range of motion of the right wrist and decreased strength of the right wrist and hand, has been manifest by, at worst, severe incomplete paralysis of the minor lower radicular group.

8. For the entire appellate period, the Veteran's bilateral hearing loss has been productive of a puretone threshold average of 41.25 decibels (dB) and speech recognition ability of 96 percent in the right ear and a puretone threshold average of 58.75 dB and speech recognition ability of 84 percent in the left ear, at worst.


CONCLUSIONS OF LAW

1. The criteria for compensation under 38 U.S.C.A. § 1151 for radiation skin burns, dyschromia, depression, and anxiety due to ultraviolet light therapy treatment rendered at a VA healthcare facility have not been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015).

2. The criteria for entitlement to service connection for a genitourinary disorder, including prostatitis and urethritis, have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015).

3. The criteria for entitlement to service connection for Meniere's syndrome, to include as secondary to service-connected hearing loss, tinnitus, and/or allergic rhinitis, have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2015).

4. The criteria for entitlement to service connection for vertigo, to include as secondary to service-connected hearing loss, tinnitus, and/or allergic rhinitis, have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2015).

5. The criteria for entitlement to service connection for hemorrhoids have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015).

6. The criteria for entitlement to service connection for anal fissures have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015).

7. The criteria for a 40 percent disability rating and no higher for scar hyperesthesia, status post ganglion cyst with residuals of decreased range of motion of the right wrist and decreased strength of the right wrist and hand have been met for the entire appellate period. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.14, 4.71a, 4.118, 4.124a, DCs 5215, 7804, 8512 (2015).

8. The criteria for an initial compensable rating for bilateral hearing loss have not been met during the pendency of this claim. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.85, DC 6100 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104; Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Although the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The claimant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id.

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 a claim, in which case, the claim is denied. Id.

Duties to Notify and Assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015).

An August 2010 letter advised the Veteran of the information and evidence necessary to substantiate a claim for compensation under 38 U.S.C.A. § 1151. November 2005, January 2007, December 2009, February 2010, and April 2010 letters informed the Veteran of the elements of service connection (direct and secondary and of how VA determines increased disability rating claims. Both letters informed the Veteran of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claims. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008), overruled in part sub. nom. Vazquez-Flores/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009). The duty to notify has been satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records (STRs) and other pertinent records, including private medical records (PMRs). See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's STRs, VA medical records (VAMRs), and private medical records (PMRs). The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Appropriate VA medical inquiry was accomplished and is factually informed, medically competent, and responsive to the issues under consideration. Monzingo v Shinseki, 26 Vet. App. 97 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007).

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Merits of the § 1151 Claim

The Veteran asserts that he has radiation skin burns, dyschromia, depression, and anxiety due to ultraviolet light therapy treatment rendered at a VA healthcare facility. See June 2010 Claim. The preponderance of the evidence is against the claim and the appeal will be denied.

A claimant may be compensated for an additional disability or for death if the disability/death 1) did not result from the claimant's willful misconduct and 2) was proximately caused by either a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing hospital care, medical or surgical treatment, or examination or b) an event not reasonably foreseeable. 38 U.S.C.A. § 1151.

In determining whether additional disability exists, VA compares the claimant's physical condition immediately prior to the hospital care or medical treatment upon which the claim for benefits is based with the physical condition after such care or treatment. 38 C.F.R. § 3.361(b).

Causation is established by evidence that shows that the VA medical treatment resulted in the claimant's additional disability. Merely showing that a claimant received care, treatment, or examination and that the claimant has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). The action or event that directly caused the disability, as distinguished from a remote contributing cause, constitutes the proximate cause of the disability. 38 C.F.R. § 3.361(d).

Whether the proximate cause of a claimant's additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2).

In addition to causation, the evidence must show that (1) VA failed to exercise the degree of care that expected from a reasonable health care provider or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the claimant's or, where appropriate, the claimant's representative's informed consent. 38 C.F.R. § 3.361(d)(1); see also VAOPGCPREC 5-01. Whether informed consent exists depends upon whether the health care provider substantially complied with the requirements of 38 C.F.R. § 17.32 (2015). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial to the outcome of the case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1).

Specifically, the Veteran claims that on April 2, 2010, a dermatology clinic employee administered "3 successive back-to-back excessive treatment doses of ionizing radiation [u]ltra[v]iolet [l]ight treatments in excess of over 400 nanometers of radiation for treatment of my severe skin disorder, variously classified." See June 2010 Claim. The Veteran asserted that the treatment caused his "overall medical and mental conditions to worsen." Id.

VA medical records reflect he was receiving UVB phototherapy for his pruritis. The treatments began in February 2010, at which time his medical records reflect that he signed an informed consent form. See February 2010 VAMRs.

VAMRs confirm the Veteran received UVB phototherapy treatment on April 2, 2010. The treatment notes indicate that his previous treatment was on March 31, 2010, and it was his fourteenth treatment; he received a dose of 417 mJ. His successive treatments (treatment numbers six to seventeen) were to increase 1.15 mJ, therefore his April 2, 2010 treatment dose was calculated at 480 mJ. There is no indication in the medical records that he was given three successive treatments on April 2, 2010, or at any other time.

The VAMRs reflect that on April 5, 2010, the Veteran complained of severe skin irritation on his face and entire body, and a doctor recommended he cancel his treatment for one week and restart at 300 mJ.

On April 14, 2010, a mental health note indicated the Veteran reported "they increased my [dose] to over 400 and gave me three consecutive treatments that day. My skin was peeling/hanging off my face." April 2010 VAMRs. The psychologist noted the Veteran was very disturbed and had been depressed about what had happened. In May 2010, he continued to express worry about radiation poisoning and other health risks during a mental health appointment. May 2010 VAMRs. During the course of his appeal he has submitted numerous lay statements and photographs expressing similar concerns.

In August 2011, a VA examiner noted that the dosages of ultraviolet light treatments leading up to April 2, 2010, on April 2, 2010, and subsequent appeared to be appropriate, and that there was no medical record evidence that the Veteran received three treatments on April 2, 2010. The examiner stated the dosage administered that day was "absolutely according to protocol, and the formula used to calculate dosage was correct." The examiner found that the record did not support the Veteran's contention that excessive radiation was administered on April 2, 2010, and stated he found "no evidence of carelessness, negligence, or lack of skill."

In October 2012, a VA examiner noted the Veteran alleged that he received triple the amount of treatment, but his chart did not document that. The examiner further noted that notations from internal medicine and mental health documented his complaints, but that the Veteran's chart did not document an error by VA in skill, judgment, care, or fault.

In March 2015, a VA examiner noted the Veteran's ultraviolet light treatments started at the appropriate dose and was increased by the appropriate amount with each visit according to well-accepted standard guidelines. The examiner further stated she could find no evidence that three treatments were administered on April 2, 2010. She noted that the dose administered on that date was in accordance with treatment protocol and the formula used to calculate the dosage was correct. The examiner stated she found no evidence of carelessness or lack of skill by the nurses, physicians, or other personnel administering the ultraviolet light treatment on April 2, 2010, and that the record did not support the claim that excessive ultraviolet radiation was administered on that date.

There is no competent (i.e., medically qualified and factually informed) evidence in support of the Veteran's contentions. The August 2011, October 2012, and March 2015 VA examination reports constitute highly probative evidence that weighs against entitlement to compensation under 38 U.S.C. § 1151 for radiation skin burns, dyschromia, depression, and anxiety due to ultraviolet light therapy treatment rendered at a VA healthcare facility. The opinion were rendered by VA doctors - specialists in dermatology - who reviewed the claims file and provided clear rationale for their opinions. In addition, the examiners' opinions are consistent with the medical evidence, which does not indicate the Veteran received three successive radiation treatments on April 2, 2010.

The Board has also considered the Veteran's statements regarding his claimed improper treatment and resulting disability. However, there is no evidence to support the Veteran's contentions that he received three successive radiation treatments. 

The August 2011, October 2012, and March 2015 VA examiners' opinions that the Veteran was given the correct dosage on April 2, 2010, and that there was no evidence of carelessness or lack of skill by the medical personnel on that date outweighs lay evidence to the contrary. Whether the Veteran was given an improper dosage and, if so, whether additional disability resulted from VA error/fault is a medically complex determination that cannot be based on lay observation alone. See Jandreau, 492 F. 3d at 1376-77, n.4; see also Barr, 21 Vet. App. at 309. Rather, such a determination must be made by a medical professional with appropriate expertise. See id.  Because the Veteran, as a lay person, lacks medical training and/or experience, his assertion that he received an improper dosage of ultraviolet light therapy leading to radiation skin burns, dyschromia, depression, and anxiety which constituted an error/fault on the part of VA is not competent evidence. Consequently, the lay statements are outweighed by the VA examiners' opinions, which were rendered by medical professionals. See Layno, 6 Vet. App. at 470-71.

The preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply and entitlement to compensation for radiation skin burns, dyschromia, depression, and anxiety is denied. See 38 U.S.C.A. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2015); Gilbert, 1 Vet. App. at 56-57.

Merits of the Service Connection Claims

Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

To establish service connection for a medical disorder, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Entitlement to service connection may also be established on a secondary basis for a disability that is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a).

Service Connection for a Genitourinary Disorder

The Veteran claims that he has a genitourinary disorder, to include prostatitis and urethritis, which was incurred in service. Although the Veteran has been diagnosed as having a current genitourinary disorder, the probative evidence of record does not indicate that it relates to service. The claim is denied.

The Veteran's STRs reflect that in August 1964, he was treated for urethritis due to gonococci (gonorrhea). In September 1964, he was treated for probable prostatitis with some urinary frequency. In October 1964, he reported to medical where examination indicated a swollen, tender prostate and dysuria without discharge, with an impression of possible recurrent gonorrhea, urethritis, and prostatitis. In November 1964, he was treated for dysuria and urethral discharge, and the impression was again gonorrhea, urethritis, and prostatitis. His Report of Medical Examination at separation indicated his genitourinary system was normal, and he denied frequent or painful urination or any other genitourinary problem on his Report of Medical History. See May 1965 Report of Medical Examination and History. There was a notation that he was treated for urethritis in August 1964. Id.

Post-service medical records indicate sporadic mention of genitourinary problems, including in March 1968, June 1985, March 1992, and April 2004. In September 2006, the Veteran's screening for prostate cancer was normal; in March 2007, he was diagnosed with benign hypertrophic prostate; and in March 2009, he complained of urinary frequency.

In October 2012, a VA examiner noted that the Veteran's genitourinary disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In making this determination, the examiner noted the Veteran's service records did not record ongoing treatment for chronic prostatitis or urethritis, and that he had treatment of acute, limited conditions, including gonorrhea.

The October 2012 VA examination report constitutes highly probative evidence that weighs against service connection for a genitourinary disorder. The examination was performed by a medical doctor who reviewed the pertinent medical evidence, conducted a physical examination, considered the Veteran's self-reported medical history, and provided a clear rationale for why the Veteran's current genitourinary disorder was not incurred in service.

The Board has considered the Veteran's statements regarding the etiology of his current genitourinary disorder, including his reports that he had been having signs and symptoms of a prostate condition for his lifetime. See, e.g., May 2010 Statement.

The Veteran's separation examination constitutes probative evidence that he did not experience any genitourinary problems on separation from service. The Veteran's May 1965 medical assessment was performed to ascertain the Veteran's state of physical health and is equivalent to statements of diagnosis and/or treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that recourse to the Federal Rules of Evidence may be appropriate to assist in the articulation of the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (observing that statements made to physicians for purposes of diagnosis and/or treatment are often exempted from the general prohibition of hearsay because the declarant has a strong motive to tell the truth in order to receive proper medical care). Similarly, the May 1965 Report of Medical History constitutes a complete assessment of the Veteran's medical problems at separation from service. See also AZ v. Shinseki, 731 F. 3d 1303, 1315   (Fed. Cir. 2013) (finding that the absence of an entry in a record may be considered evidence that a fact did not occur if the fact would have been recorded if present); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in the STRs can constitute "contradictory" evidence weighing against the credibility of a claimant's testimony if the STRs are complete "in relevant part," and there is competent evidence that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred"). In addition, the Veteran's in-service treatment for genitourinary symptoms dated from August 1964 to November 1964, as he completed approximately eight months of service after his last treatment with no indication of ongoing problems. Thus, the Veteran's STRs suggest that his in-service gonorrhea, urethritis, and prostatitis were acute and resolved prior to separation from service.

Although the Veteran is competent to identify symptoms such as pain and urinary frequency, he is not competent to determine if he has a genitourinary disorder that was incurred in service. Whether the Veteran's genitourinary disorder relates to his service is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77, n.4 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303, 309. Such a determination must be made by a medical professional with appropriate expertise. Id. Because the Veteran's statements are not based on medical training and/or experience, his assertion that his genitourinary disorder relates to service does not constitute competent evidence and is therefore outweighed by the VA examiner's opinion, which was rendered by a medical expert and is based on the Veteran's medical history. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994).

The preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt rule does not apply and service connection for a genitourinary disorder is denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.

Service Connection for Meniere's Syndrome and Vertigo

The Veteran contends he has Meniere's Syndrome and vertigo that relate to his active duty service, specifically to his service-connected disabilities. However, the probative evidence of record does not suggest that he has these diagnoses, therefore the claims must be denied.

The Veteran's STRs do not show treatment for Meniere's syndrome or vertigo. See STRs. His May 1965 separation examination also did not indicate any problems with Meniere's syndrome or vertigo, and the Veteran specifically denied dizziness or fainting spells and ear, nose, or throat trouble. See May 1965 Report of Medical Examination and History.

In December 2012, a VA examiner noted the Veteran did not have an ear or peripheral vestibular condition, to include Meniere's syndrome or vertigo. Rather, the examiner noted the Veteran's only ear conditions were hearing impairment and tinnitus. Physical examination showed the external ears, ear canals, and tympanic membranes were normal. The Veteran's gait was normal, and tests for unsteadiness, vertigo, and limb coordination were also normal. The examiner noted that the Veteran had no vestibular defects on examination, and his history, audiogram, and clinical examination were not consistent with Meniere's disease, as he had no low frequency sensorineural hearing loss, and he also had no benign paroxysmal positional vertigo (BPPV).

The December 2012 VA examination report constitutes highly probative evidence that weighs against service connection for Meniere's syndrome or vertigo. The examination was conducted by a VA doctor who reviewed the Veteran's claims file and pertinent medical history, examined the Veteran, and clearly stated that the Veteran does not have a current vestibular defect, to include Meniere's syndrome or vertigo.

The Board has considered the Veteran's numerous lay statements regarding his symptoms. See Veteran's Statements. The Veteran, as a lay person, is competent to describe physical symptoms and to report that he has received a medical diagnosis. However, he is not competent to diagnose his symptoms or attribute them to military service or service-connected disabilities. Whether the Veteran has current Meniere's syndrome and vertigo and whether those disorders relates to service is a medically complex determination that cannot be based on lay observation alone. See Jandreau, 492 F. 3d at 1376-77, n.4; Barr, 21 Vet. App. at 309. Instead, the determination must be made by a medical professional with appropriate expertise. Id. Thus, in so far as the Veteran's statements indicate that he has current Meniere's syndrome and vertigo that relates to service, they are outweighed by the VA examiner's finding that the Veteran does not have either of these diagnosis. See Layno, 6 Vet. App. at 470-71.

In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Moreover, with respect to the claim for service connection for vertigo, a symptom or a finding, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).

The preponderance of the evidence is against the Veteran's claims. The benefit-of-the-doubt rule does not apply and service connection for Meniere's syndrome and vertigo are denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.


Service Connection for Hemorrhoids and Anal Fissures

The Veteran claims that his hemorrhoids and anal fissures that were incurred in service. Although the Veteran has been diagnosed as having these conditions, the probative evidence of record does not indicate that they relate to service. The claims are denied.

The Veteran's STRs do not reflect treatment for hemorrhoids or anal fissures. His Report of Medical Examination at separation did not indicate hemorrhoids or anal fissure, and the Veteran specifically denied piles or rectal disease on his Report of Medical History. See May 1965 Report of Medical Examination and History.

Post-service medical records show the first mention of hemorrhoids in August 1973, with continuous complaints and treatment since then.

In October 2012, a VA examiner confirmed the Veteran had hemorrhoids and an anal fissure. The examiner opined that the claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, as the Veteran's service records did not record ongoing treatment for hemorrhoids or anal fissures.

The October 2012 VA examination report constitutes highly probative evidence that weighs against service connection for hemorrhoids or anal fissures. The examination was performed by a medical doctor who reviewed the pertinent medical evidence, conducted a physical examination, considered the Veteran's self-reported medical history, and provided a clear rationale for why the Veteran's current hemorrhoids and anal fissures were not incurred in service.

The Board has considered the Veteran's statements regarding the etiology of his current hemorrhoids and anal fissure, including his reports that he had been having continuous hemorrhoids since service, so his claim should be evaluated under 38 C.F.R. § 3.303(b). See, e.g., September 2011 Substantive Appeal. However, the Board notes that 38 C.F.R. § 3.303(b), as referenced by the Veteran, only refers to specific chronic diseases enumerated in 38 C.F.R. § 3.309(a). Hemorrhoids and anal fissures are not considered chronic diseases under section 3.309(a), therefore the provisions of subsection 3.303(b) for chronic diseases do not apply.

Further, the Veteran's separation examination constitutes probative evidence that he did not experience hemorrhoids or anal fissures on separation from service. The May 1965 Report of Medical History at separation assessed the Veteran's state of physical health at that time and is equivalent to statements of diagnosis and/or treatment. See Rucker, 10 Vet. App. at 73. The May 1965 Report of Medical History where the Veteran specifically denied piles or rectal disease constitutes a complete assessment of the Veteran's medical problems at separation from service. See AZ, 731 F. 3d at 1315; Kahana, 24 Vet. App. at 440. Thus, the Veteran's STRs do not show he had hemorrhoids or anal fissures upon separation from service.

Although the Veteran is competent to identify symptoms such as pain, he is not competent to determine if he has hemorrhoids or anal fissures that were incurred in service. Whether the Veteran's hemorrhoids or anal fissures relate to his service is a medically complex determination that cannot be based on lay observation alone. See Jandreau, 492 F. 3d at 1376-77, n.4; see also Barr, 21 Vet. App. at 309. Such a determination must be made by a medical professional with appropriate expertise. Id. Because the Veteran's statements are not based on medical training and/or experience, his assertions that his hemorrhoids and anal fissures relates to service do not constitute competent evidence and are therefore outweighed by the VA examiner's opinion, which was rendered by a medical expert and is based on the Veteran's medical history. See Layno, 6 Vet. App. at 470-71.

The preponderance of the evidence is against the Veteran's claims. The benefit-of-the-doubt rule does not apply and service connection for hemorrhoids and anal fissures is denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.


Merits of the Increased Rating Claims

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

The Schedule assigns DCs to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. Id.; see 38 C.F.R. § 4.14.

Right Wrist Disorder

The Veteran's right wrist disorder (non-dominant/minor side) was rated as 20 percent disabling from February 15, 1989 to November 15, 2009 and 40 percent disabling since November 16, 2009 under diagnostic code 7805-8512. Hyphenated DCs are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2015).

DC 7805 provides that scars can be rated on disabling effects not considered in DCs 7800 to 7804. See 38 C.F.R. § 4.118.

DC 8512 (diseases of the peripheral nerves - lower radicular group) provides that a 20 percent rating is warranted for mild, incomplete paralysis; a 30 percent rating is warranted for moderate, incomplete paralysis; a 40 percent rating is warranted for severe, incomplete paralysis; and a 60 percent rating is warranted for complete paralysis of all intrinsic muscles of the hand and some or all of the flexors of the wrist and fingers (substantial loss of use of hand).

The schedule also notes that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. § 4.124a.

Also relevant is DC 5215 (wrist, limitation of motion), which provides a rating of 10 percent for dorsiflexion of less than 15 degrees (minor or major side) or for palmar flexion limited to being in line with the forearm (minor or major side).

Normal dorsiflexion of the wrist is 70 degrees and normal palmar flexion of the wrist is 80 degrees. 38 C.F.R. § 4.71 , Plate I. Normal ulnar deviation of the wrist is 45 degrees and normal radial deviation of the wrist is 20 degrees. Id.

In a November 1989 Report of Medical Examination for Disability Evaluation, the Veteran reported he had constant severe, aching, throbbing pain with decreased movement in his right arm.

In April 1992, a VA examiner noted the Veteran complained of pain in the wrist, limited mobility, and no grip in his hand, suggesting carpal tunnel syndrome. On physical examination, the examiner observed there was a one inch diagonal scar crossing the dorsal wrist and noted the wrist was tender to touch and appeared painful. There was minimal wrist swelling and deformity and no laxity. Range of  motion showed marked limitation, with dorsiflexion to 50 degrees, palmar flexion to 10 degrees, ulnar deviation to 20 degrees, and radial deviation to 10 degrees.

In March 2006, a VA examiner noted the Veteran reported "severe pain" in his wrist, with associated weakness and decreased range of motion. He reported constant pain over the scar which kept him awake at night. Physical examination showed a level scar at the ventral surface of the right wrist measuring about 3.5 cm by 2 cm with tenderness and hypopigmentation of less than six square inches. There was no disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation, or abnormal texture. Range of motion was dorsiflexion to 55 degrees, palmar flexion to 30 degrees, radial deviation to 10 degrees, and ulnar deviation to 20 degrees, all with pain at the end. The examiner noted the joint function was additionally limited by weakness, lack of endurance, and pain after repetitive use, but that it was not additionally limited by fatigue or incoordination. However, range of motion results for repetitive testing were not provided, so the basis of this conclusion is unclear. The examiner further noted that right hand grip strength was 3/5 and x-ray test results were within normal limits.

A March 2006 x-ray showed no evidence of fracture or other significant bone or soft tissue abnormality.

In November 2009, a VA examiner noted the Veteran reported pain and skin breakdown daily, and that his right wrist disorder was totally and permanently disfiguring for 47 years. He reported the scar was painful and tender to the touch, with no laxity and marked limitation, including poor grip. He reported weakness, stiffness, swelling, redness, giving way, lack of endurance, locking, fatigability, tenderness, drainage, effusion, subluxation, and pain in the extremity, but denied experiencing heat, deformity, or dislocation. He reported experiencing flare-ups once each day, lasting for 24 hours, and reported pain of 10 out of 10. He further reported his right wrist caused difficulty with standing and walking.

Upon physical examination, the examiner noted there was a linear scar precisely located on the right wrist measuring 2.5 cm by 0.5 cm. The examiner observed the scar was painful on examination but that there was no skin breakdown. The examiner described the scar as superficial with no underlying tissue damage, and noted there was no inflammation, edema, keloid formation, disfiguration, limitation of motion, or limitation of function.

The examiner noted the right wrist had tenderness and guarding of movement, but no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, malalignment, drainage, subluxation, or anklyosis. Range of motion measurements were dorsiflexion, palmar flexion, radial deviation, and ulnar deviation all to 5 degrees, and repetitive range of motion was not possible due to pain. The examiner noted the Veteran reported difficulty tying shoelaces and fastening buttons with his right hand, but was able to pick up a piece of paper and tear it without difficulty. His right hand strength was slightly reduced. Range of motion of his thumb and all fingers were within normal limits, including on repetition.

The examiner noted that x-ray results were within normal limits and the objective factors of his right wrist disorder were a painful scar, restricted range of motion, and tenderness. The effect of the condition on his daily activity was noted as inability to hold anything.

In April 2012, a VA examiner noted the Veteran's right wrist scar was not painful or unstable. The scar was described as linear and measuring 2 cm by 0.5. cm. The examiner noted there was hypersensitivity around the scar.

In October 2012, a VA examiner noted the Veteran's right wrist scar was not painful or unstable. It was described a linear and 2.5 cm long. The examiner noted the scar did not result in limitation of function, and that there were no other pertinent physical findings, including muscle or nerve damage, associated with the scar.

The Veteran also reported to the VA examiner that he was unable to use his right hand. Range of motion tests showed palmar flexion to 80 degrees or greater and dorsiflexion to 70 degrees or greater, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions with the same results. The examiner noted there was no additional limitation in range of motion of the wrist following repetitive-use testing, but there was weakened movement, excess fatigability, and pain on movement. There was no tenderness or pain on palpation of his wrist and muscle strength testing was normal. X-rays did not show any arthritis and were described as "essentially unremarkable." The examiner reported that as far as the functional impact of the Veteran's right wrist disorder, he continued to state he could not use his right hand, but range of motion was dramatically improved since his last examination. the examiner further noted that "when observed unnoticed he ha[d] normal range of motion of the right wrist," and he was able to grip papers and find paperwork with his right wrist.

The Veteran has alleged severe right wrist symptoms, including affecting his ability to use his right hand entirely or to stand or walk. See, e.g., November 2009 VA Examination Report. However, also relevant is the Veteran's diagnosis of somatic symptom disorder/hypochondriasis with poor insight, as several VA examiners have noted his described health problems are not as severe as he believes them to be. See, e.g., November 2012 and December 2014 VA Examination Reports.

However, because of the difficulty in ascertaining the actual versus subjective extent of the Veteran's past symptomatology, a 40 percent disability rating is warranted as of February 15, 1989. This disability rating especially takes into consideration the April 1992 VA examination, which reflected marked limitation of motion. A disability rating higher than 40 percent is not warranted from the period of February 15, 1989 to November 15, 2009, as there is no evidence the Veteran had complete paralysis of his wrist. Moreover, rating the Veteran's right wrist under DC 8512 provides a more favorable rating than rating under limitation of motion under DC 5215. See 38 C.F.R. § 4.71a. A separate rating under DC 5215 cannot be assigned due to limitations on rating a single disability under different DCs. See 38 C.F.R. § 4.14. Further, the criteria is not met for a separate rating for his associated right wrist scar. See 38 C.F.R. § 4.118, DC 7804.

A disability rating in excess of 40 percent from November 16, 2009 forward is not warranted. While the Veteran continued to show severe loss of range of motion on a November 2009 VA examination, there was again no evidence of complete paralysis of his right wrist. Further, separate ratings under DC 5215 and 7804 are again unwarranted. See 38 C.F.R. §§ 4.14, 4.71a, 4.118, DCs 5215, 7804. As of the October 2012 VA examination, the objective medical evidence showed marked improvement in the Veteran's right wrist disorder, therefore at this time he did not even meet the criteria for the assigned 40 percent rating.

In summary, from February 15, 1989 to November 15, 2009, the criteria for a 40 percent disability rating are met. Since November 16, 2009, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt rule does not apply and entitlement to a disability rating in excess of 40 percent for a left wrist disorder since November 16, 2009 is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.

Bilateral Hearing Loss

The RO has rated the Veteran's bilateral hearing loss as 0 percent disabling. He contends a higher rating is warranted.

Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100. Disability ratings for service-connected hearing loss range from noncompensable to 100 percent and are determined by inserting numbers, which are assigned based on the results of audiometric evaluations, into Table VI in DC 6100. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Schedule establishes eleven auditory acuity levels that range from Level I (essentially normal hearing acuity) to Level XI (profound deafness). Id. The level of auditory acuity is based on the average puretone threshold (derived from the results of puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second) and organic impairment of hearing acuity (measured by controlled speech discrimination tests). See 38 C.F.R. § 4.85, Table VI. The columns in Table VI represent nine categories of dB loss as measured by puretone threshold average. The rows in Table VI represent nine categories of organic impairment of hearing acuity as measured by speech discrimination tests. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the column that represents the relevant puretone threshold average with the row that represents the relevant speech discrimination test result. Id.

The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the row that corresponds to the numeric designation for the ear with better hearing acuity (as determined by Table VI) and the column that corresponds to the numeric designation level for the ear with the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See id.

An August 1973 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
0
5
-
5
3.33
LEFT
0
15
-
45
20

Speech discrimination tests revealed speech recognition ability of 94 percent in both the right and left ears. Only left ear high frequency tone loss was found.

Table VI in 38 C.F.R. § 4.85 combines the puretone average and the speech recognition scores to produce a numeric designation for each ear, which is inserted into Table VII in 38 C.F.R. § 4.85 to determine the correct disability level. Because the right ear had a puretone average of 3.33 dB and a speech recognition score of 94 percent, it receives a designation of I. See id. Because the left ear had a puretone average of 20 dB and a speech recognition score of 94 percent, it also receives a designation of I. See id. The intersection of designations I and I on Table VII establishes that the Veteran's hearing loss is entitled to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

A September 1973 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
5
5
-
10
6.67
LEFT
5
15
-
45
21.67

Speech discrimination tests revealed speech recognition ability of 96 percent in the right ear and 90 percent in the left ear. These results also show designations of I in both ears, which when inserted into Table VII continue to show entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

A March 1974 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
5
0
-
15
6.67
LEFT
5
20
-
50
25

Speech discrimination tests revealed speech recognition ability of 94 percent in the right ear and 88 percent in the left ear. These results show a Table VI designation of I in the right ear and II in the left ear, which when inserted into Table VII continue to show entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

A May 1984 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:



HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
0
5
-
20
8.33
LEFT
0
30
-
60
30

Speech discrimination tests revealed speech recognition ability of 94 percent in the right ear and 88 percent in the left ear. These results continue to show a Table VI designation of I in the right ear and II in the left ear, which when inserted into Table VII show entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

An April 1985 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
0
0
-
20
6.67
LEFT
5
20
50
55
32.5

Speech discrimination tests revealed speech recognition ability of 100 percent bilaterally. These results show a Table VI designation of I in both ears, which when inserted into Table VII continues to show entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

A November 1989 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
5
10
10
30
13.75
LEFT
10
30
50
65
38.75

Speech discrimination tests revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. These results show a Table VI designation of I in both ears, which when inserted into Table VII continues to show entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

A February 1991 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
5
5
10
30
12.5
LEFT
10
40
50
65
41.25

Speech discrimination tests revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. These results show a Table VI designation of I in both ears, which when inserted into Table VII continues to show entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

An April 1992 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
5
5
10
30
12.5
LEFT
10
40
50
60
40

Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. These results show a Table VI designation of I in both ears, which when inserted into Table VII continues to show entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

A March 2006 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
10
30
30
55
31.25
LEFT
20
70
60
80
57.5

Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 92 percent in the right ear and 84 percent in the left ear. These results show a Table VI designation of I in the right ear and III in the left ear, which when inserted into Table VII indicate entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

A November 2009 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
20
40
45
60
41.25
LEFT
30
60
65
80
58.75

Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 94 percent bilaterally. These results show a Table VI designation of I in the right ear and II in the left ear, which when inserted into Table VII reflect entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

An April 2012 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
20
40
45
60
41.25
LEFT
25
65
65
80
58.75

Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear. These results show a Table VI designation of I in the right ear and III in the left ear, which when inserted into Table VII still reflect entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

An August 2012 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
15
40
45
60
40
LEFT
25
70
65
85
61.25

Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 100 percent bilaterally. These results show a Table VI designation of I in the right ear and II in the left ear, which when inserted into Table VII show entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

A December 2012 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
15
40
50
60
41
LEFT
15
65
65
75
55

Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 98 percent in the right ear and 92 percent in the left ear. These results show a Table VI designation of I in both ears, which when inserted into Table VII show entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

A January 2015 VA audiological examination report showed that the Veteran's puretone thresholds, in dB, were as follows:

HERTZ
1,000
2,000
3,000
4,000
Average
RIGHT
20
45
45
55
41.25
LEFT
30
65
65
70
57.5

Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 94 percent bilaterally. These results show a Table VI designation of I bilaterally, which when inserted into Table VII show entitlement to a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100.

VA regulation includes two provisions for evaluating claimants with certain patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 due to the limitations of speech discrimination tests. The provisions account for a hearing impairment that becomes extreme in the presence of any environmental noise and that cannot always be accurately measured by a speech discrimination test conducted in a quiet room with amplification of sound. See id. Based on the puretone thresholds recorded in all of the aforementioned VA examination reports, these provisions do not apply.

The Board has considered the functional impairment caused by the Veteran's hearing loss disability. The Veteran has noted decreased hearing ability and submitted lay statements from coworkers noting his decreased hearing acuity. 

The Veteran's reported functional impairment does not establish entitlement to a higher rating. The impairments described as associated with the Veteran's hearing loss are contemplated by the rating criteria, which take into account the average impairment resulting from a service-connected disability. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Absent audiometric and speech discrimination scores showing that the Veteran's hearing loss disability meets the schedular criteria for a compensable rating, the Veteran's reported functional impairment does not warrant a compensable rating. See 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 349.

The Veteran's bilateral hearing loss has not met the schedular criteria for a compensable rating at any time during the pendency of this claim. See 38 C.F.R. §§ 4.85, 4.86. Although the Veteran contends that his hearing loss is more disabling than contemplated by the noncompensable rating assigned, and VA audiology examination has shown it has worsened since he first filed for service connection, the preponderance of the evidence weighs against a compensable rating for the Veteran's service-connected hearing loss.

The preponderance of the evidence is against the Veteran's claim. Thus, the benefit-of-the-doubt rule does not apply, and entitlement to an initial compensable rating for bilateral hearing loss is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.

Extraschedular Consideration

The Board has considered whether the evaluations of the Veteran's service-connected right wrist disorder or bilateral hearing loss disabilities should be referred for extraschedular consideration. See 38 C.F.R. § 3.321(b) (2014); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the Schedule are averages, an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran's individual circumstances. Thun, 22 Vet. App. at 114. In exceptional situations where the rating is inadequate, the case may be referred for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1).

In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extra-schedular rating. Id.

Referral for extraschedular consideration is not warranted. A comparison of the Veteran's service-connected right wrist disorder, and bilateral hearing loss disabilities and the applicable rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The Veteran's right wrist disorder mainly result in symptoms of pain and decreased motion, and his bilateral hearing loss results in decreased hearing acuity. While the Veteran has reported numerous subjective symptoms, the medical evidence does not report any objective symptoms associated with these disabilities that are not included in the rating criteria or have otherwise been left uncompensated or unaccounted for by his assigned schedular ratings. See 38 C.F.R. §§ 4.71a, 4.85, 4.118, 4.124a, DCs 5215, 7804, 8512, 6100; see also Thun, 22 Vet. App. at 115. There is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization, see id. at 118-19, and referral for extraschedular consideration is not warranted.


ORDER

Service connection for a genitourinary disorder, including prostatitis and urethritis, is denied.

Service connection for Meniere's syndrome is denied.

Service connection for vertigo is denied.

Service connection for hemorrhoids is denied.

Service connection for anal fissures is denied.

Entitlement to compensation under 38 U.S.C. § 1151 for radiation skin burns, dyschromia, depression, and anxiety due to ultraviolet light therapy treatment is denied.

A 40 percent disability rating and no higher for the entire appellate period for scar hyperesthesia, status post ganglion cyst with residuals of decreased range of motion of the right wrist and decreased strength of the right wrist and hand is granted.

An initial compensable rating for bilateral hearing loss is denied.


REMAND

Regarding the claim for service connection for an acquired psychiatric disorder, two VA examiners noted the Veteran had hypochondriasis, now referred to as somatoform disorder. However, the Veteran's VA medical records reflect diagnoses of major depression and panic disorder, therefore clarification is needed as to whether he has these conditions or any other acquired psychiatric disorder, and if so, whether it is related to his service-connected hearing loss, tinnitus, and/or allergic rhinitis. See VAMRs.

An addendum opinion is needed regarding the Veteran's claim for service connection for obstructive sleep apnea. While the October 2012 examiner provided an opinion about direct service connection, he did not provide a complete opinion regarding secondary service connection and the Veteran's allergic rhinitis.

Accordingly, the case is REMANDED for the following action:

1. Request that the Veteran identify and secure any relevant private treatment records (PMRs) that are not in the claims file. Attempt to obtain any records identified by the Veteran and associate these records with the claims file.

2. Obtain outstanding VA medical records (VAMRs) and associate them with the claims file.

3. After the passage of a reasonable amount of time or upon the Veteran's response, return the claims file to the VA examiner who provided the December 2014 examination for an addendum opinion as to whether the Veteran has any diagnosed acquired psychiatric disorder that had its onset in service or otherwise relates to service. If the examiner is not available, request an opinion from another qualified VA examiner. The entire claims file, to include a copy of this REMAND, must be made available to the VA examiner, who must note its review.

a. The examiner must identify ALL acquired psychiatric disorders. If the examiner only identifies hypochondriasis/somatoform disorder, he or she must comment on the Veteran's post-service medical records indicating diagnoses of major depression and panic disorder.

b. For any diagnosed acquired psychiatric disorders other than hypochondriasis/somatoform disorder, the examiner must opine as to whether they were caused or AGGRAVATED (I.E., PERMANENTLY WORSENED) by service.

c. For any diagnosed acquired psychiatric disorders other than hypochondriasis/somatoform disorder, the examiner must also opine as to whether they were caused or AGGRAVATED (I.E., PERMANENTLY WORSENED) by his service-connected bilateral hearing loss, tinnitus, and/or allergic rhinitis.

d. The examiner has an independent responsibility to review the entire claims file for pertinent evidence, INCLUDING ANY PERTINENT MEDICAL EVIDENCE THAT IS ASSOCIATED WITH THE CLAIMS FILE AS A RESULT OF THIS REMAND. The examiner's attention is called to:

May 1965 Report of Medical Examination, noting no psychiatric problems at separation.

May 1965 Report of Medical History, denying depression or excessive worry and nervous trouble of any sort at separation.

November 2012 VA Examination Report.

December 2014 VA Examination Report.

4. After the passage of a reasonable amount of time or upon the Veteran's response, return the claims file to the VA examiner who provided the October 2012 examination for an addendum opinion as to whether the Veteran's obstructive sleep apnea was aggravated by his service-connected allergic rhinitis. If the examiner is not available, request an opinion from another qualified VA examiner. The entire claims file, to include a copy of this REMAND, must be made available to the VA examiner, who must note its review.

a. The VA examiner must opine as to whether the Veteran's current obstructive sleep apnea was caused or AGGRAVATED (I.E., PERMANENTLY WORSENED) by service.

b. The VA examiner must opine as to whether the Veteran's current obstructive sleep apnea was caused or AGGRAVATED (I.E., PERMANENTLY WORSENED) by his service-connected allergic rhinitis.

c. The examiner has an independent responsibility to review the entire claims file for pertinent evidence, INCLUDING ANY PERTINENT MEDICAL EVIDENCE THAT IS ASSOCIATED WITH THE CLAIMS FILE AS A RESULT OF THIS REMAND. The examiner's attention is called to:

May 1965 Report of Medical Examination, noting no obstructive sleep apnea at separation.

May 1965 Report of Medical History, denying frequent trouble sleeping or obstructive sleep apnea symptoms at separation.

October 2012 VA Examination Report.

5. Then, review the VA examiners' reports to ensure that they adequately respond to the above instructions, including providing adequate explanation in support of the requested opinions. If any report is deficient in this regard, return the case to the appropriate VA examiner for further review and discussion.

6. After the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the issues of entitlement to service connection for an acquired psychiatric disorder and obstructive sleep apnea. If the benefits sought are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review.

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).



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Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs