Citation Nr: 1607765	
Decision Date: 02/29/16    Archive Date: 03/04/16

DOCKET NO. 09-16 346	)	DATE
	)
	)

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


THE ISSUES

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

2. Entitlement to service connection for a gastrointestinal disorder, to include ulcerative colitis and gastroesophageal reflux disease (GERD), to include as due to herbicide exposure.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1968 to July 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, there is no evidence that the Veteran has been rendered unemployable due to his service-connected disabilities. As such, the issue of TDIU has not been raised by the record.

When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447. In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). 

However, the Veteran does not have a single disability rated at 100 percent with an additional disability rated at 60 percent or more, even when considering TDIU and temporary total ratings. 38 U.S.C.A. § 1114(s); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 C.F.R. §§ 3.350(i), 4.29, 4.30.
There is no lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C.A. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC.

The Board remanded the issues on appeal for additional development in April 2013. The requested records and medical opinions having been obtained, the Board finds that the directives have been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). As part of that remand, the Board also remanded the issues of service connection for PTSD and a skin disability, and while on remand service connection for these two disabilities was granted in a November 2013 rating decisions. As this constitutes a full grant of the benefits sought on appeal, these issues are no longer on appeal. AB v. Brown, 6 Vet. App. 35 (1993).

In his May 2009 substantive appeal the Veteran requested a hearing before a Veterans Law Judge. In subsequent February 2010 signed correspondence the Veteran withdrew his hearing request. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(e).

The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

The issue of entitlement to service connection for a gastrointestinal disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Throughout the period on appeal, the Veteran's hearing impairment has been no worse than a Level I impairment bilaterally.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met or approximated. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. The Board notes that the Veteran has authorized private treatment records for release from the Lexington Clinic that have not yet been obtained. See February 2008 Authorization Form. However, in contemporaneous February 2008 correspondence the Veteran's private physician at that facility, Dr. J.H., made it clear that the treatment records from that facility concern the Veteran's gastrointestinal disability, and not his bilateral hearing loss disability. See February 2008 Correspondence. 

VA's duty to assist only includes the procurement of relevant records, which are defined as those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). As the evidence of record makes clear that the outstanding private treatment records do not concern the Veteran's bilateral hearing loss, they do not have a reasonable possibility of helping to substantiate the Veteran's claim that his hearing is worse than currently rated, and are therefore not relevant. Id. Thus, VA had no duty to obtain them in conjunction with the claim for an increased rating for bilateral hearing loss, and the Veteran will not be prejudiced by the adjudication of that claim herein. Id. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records as to the claim adjudicated herein. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA audiological examinations in July 2008, December 2008, and September 2013. The examinations were adequate because the examiners were state licensed audiologists, a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test were provided, and the reports noted the effect of the hearing loss disability on the Veteran's daily functioning. See 38 C.F.R. § 4.85; Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). There is no objective medical evidence, or lay allegations of, a worsening of the Veteran's hearing since the last VA examination.

Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claim for an increased rating for a bilateral hearing loss disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Increased Schedular Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. 

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85.
"Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c).

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e).

Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b).

In this case, the Veteran was provided with three VA audiological examinations. The results of the July 2008 audiological examination, as measured by a puretone audiometry test, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
60
75
LEFT
15
15
15
60 
70

Based on these results, the average puretone threshold was 40 decibels bilaterally. 38 C.F.R. § 4.85(d). Speech recognition was 96 percent in the right ear and 92 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level I Roman numeral designation for each ear. As to functional impairment, the Veteran reported difficulty participating in conversations, particularly in the presence of background noise.

The results of the December 2008 audiological examination, as measured by a puretone audiometry test, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
60
70
LEFT
10
10
15
65
70

Based on these results, the average puretone threshold was 37.5 decibels for the right ear and 40 decibels for the left ear. 38 C.F.R. § 4.85(d). Speech recognition was 96 percent bilaterally, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level I Roman numeral designation for each ear. As to functional impairment, the Veteran reported interference with the ability to understand speech, particularly when background noise is present.

The results of the September 2013 audiological examination, as measured by a puretone audiometry test, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
00
00
10
60
75
LEFT
00
10
10
65
70

Based on these results, the average puretone threshold was 36 decibels for the right ear and 39 decibels for the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 92 percent bilaterally, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level I Roman numeral designation for each ear. As to functional impairment, the Veteran again reported difficulty understanding speech when background noise is present.

A February 2010 private audiogram is also of record. The Board notes that the process of reading the raw data from the chart used to report it requires no specialized medical training or knowledge; no interpretation is needed to transcribe the numbers from one form to another. While the Court may not do so, citing such as "fact finding," the Board and the AOJ, as triers of fact, are entitled to do so. Kelly v. Brown, 7 Vet. App. 471 (1995).

The results of the February 2010 audiological examination, as reflected by the audiogram, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
30
25
25
60
75
LEFT
15
25
20
65
70

Based on these results, the average puretone threshold was 46 decibels for the right ear and 45 decibels for the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 100 percent bilaterally, although it is unclear what type of speech discrimination test was used. Assuming that a Maryland CNC test was used, and applying these values to Table VI, the result is a Level I Roman numeral designation for each ear. As to functional impairment, the Veteran reported difficulty hearing high pitched noises and trouble holding conversations when background noise is present. No other audiological testing is of record.

In this case, none of the audiological testing of record reflects that the Veteran has at any point had worse than a Level I hearing impairment in either ear. When the Level I designations are mechanically applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. None of the results reported in the audiological evaluations do not meet the requirements for evaluation based on an exceptional pattern of impairment. 38 C.F.R. § 4.86(a)-(b).

As noted previously, in addition to objective test results, the functional effects of a hearing disability must be discussed for an audiological examination report to be adequate. Martinak, 21 Vet. App. at 455. Each examiner noted the Veteran reported difficulty holding a conversation, particularly in instances where background noise is present. The private audiogram also noted this difficulty, as well as trouble hearing high pitched noises. Thus, the functional impact of the Veteran's hearing loss was considered in each examination.

The Board has considered the Veteran's lay statements, in which he generally contends difficulty hearing generally, and difficulty understanding speech during conversations. However, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of the three VA audiological examinations and the February 2010 private evaluations, all of which indicate that the Veteran's hearing loss does not rise to the level of a compensable rating. See 38 C.F.R. § 4.85. For these reasons, the Veteran's claim for an increased rating for a bilateral hearing loss disability is denied.

All potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the currently assigned rating for the Veteran's bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Additionally, staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Fenderson, 12 Vet. App. at 126-27.

III. Extraschedular Considerations

Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.

Neither the first nor second Thun element is satisfied here. The Veteran's service-connected bilateral hearing loss disability is manifested by signs and symptoms such as decreased hearing acuity, difficulty hearing high frequency sounds and difficulty understanding speech during conversations, particularly in the presence of background noise. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule as part of the evaluation of hearing impairment. 38 C.F.R. §§ 4.85, 4.86(a). The rating schedule contemplates varying levels of hearing loss, as well as exceptional patterns of hearing loss. See id.

Given the variety of ways in which the rating schedule contemplates hearing impairment, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. There is nothing exceptional or unusual about the Veteran's bilateral hearing loss because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that his bilateral hearing loss disability has caused marked absence from work or has resulted in any hospitalizations. Therefore, the Veteran's service-connected bilateral hearing loss disability does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.

Finally, a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran is service connected for an anxiety disorder, a bilateral hearing loss disability, chronic urticaria, and tinnitus. The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.

Further, there is no medical evidence indicating that the Veteran's bilateral hearing loss disability combines or interacts with his other service-connected disabilities in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.


ORDER

Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied.


REMAND

VA has a duty to assist in the procurement of relevant records. 38 C.F.R. § 3.159. "Relevant records" are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In February 2008 the Veteran authorized for release private treatment records from Lexington Clinic, which the Veteran and his physician later indicated is a private facility where he receives treatment for his gastrointestinal disability. See February 2008 Correspondence from Dr. J.H. 

However, following the release of the records a June 2008 deferred rating decision associated with the claims file indicated that the RO determined that the Lexington Clinic treatment records were not relevant because, first, they began seven years after the Veteran's separation from service an thus did not show an in-service injury and, second, because Dr. J.H.'s one page letter contained all of the vital information to decide the claim. Following this determination by the RO, no attempts were made to obtain the records from Lexington Clinic.

While it is true that the private treatment began in approximately 1977, and it is also true that the Veteran's private physician, Dr. J.H., provided a February 2008 letter summarizing his treatment, these are not sufficient grounds to find that the records are either irrelevant or cumulative of evidence already in the file. There is no way of knowing, short of actually obtaining and reviewing the records, what information they contain or whether they are redundant of the information in the February 2008 letter. Further, the simple fact that the private treatment started seven years after his separation, and therefore cannot show in-service incurrence of colitis, does not mean that the records would not, at least to some degree, help to substantiate his claim that he has had a gastrointestinal disability since his active duty service. Id. In short, there is not sufficient evidence of record to affirmatively determine that these records do not have a reasonable possibility of substantiating the Veteran's claim, whether respect to an in-service event, injury or disease, or a nexus between the disability and his service. They are therefore relevant, and VA must attempt to obtain them. Id. 

As the Veteran has indicated that the identified facility has treatment records relevant to his claimed gastrointestinal disability, a remand is necessary so that appropriate attempts can be made to obtain these records. On remand the Veteran should be asked to submit or re-authorize for release any private treatment records relevant to his disabilities, to include from Lexington Clinic.

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and request that he submit or re-authorize for release all private treatment records associated with his claimed gastrointestinal disability, to include from Lexington Clinic, and any other private medical facilities where he has sought treatment for his claimed disability.

Then, make appropriate efforts to obtain any records so authorized for release. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given an opportunity to provide them.

2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond.

The Veteran has the right to submit additional evidence and argument on the matter 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).



______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs