Citation Nr: 1624523	
Decision Date: 06/17/16    Archive Date: 06/29/16

DOCKET NO.  08-08 852	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for a bilateral hip condition, to include as secondary to a service-connected left ankle disability.

2.  Entitlement to service connection for a low back condition, to include as secondary to a service-connected left ankle disability.

3.  Entitlement to an initial compensable rating for bilateral hearing loss.

4.  Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran had active military service from February 1969 to December 1972.

This case initially came to the Board of Veterans' Appeals (Board) on appeal from June and October 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, and Cleveland, Ohio, respectively.

The June 2007 decision granted service connection for bilateral hearing loss and assigned an initial noncompensable disability evaluation, effective July 21, 2006.  The October 2007 decision denied service connection for bilateral hip and low back conditions and entitlement to a TDIU.  Jurisdiction of the Veteran's case is currently with the VA RO in Oakland.

In April 2012, the Board remanded the Veteran's case to comply with his request to testify at a hearing before a Veterans Law Judge.

In September 2014, the Veteran testified during a hearing at the RO before the undersigned.  A transcript of the hearing is of record.

In March 2015, the Board remanded the Veteran's case for further development.

As noted by the Board in its April 2012 remand, the issue of entitlement to non-service connected pension benefits was raised by the record in an August 2011 brief, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  The Board referred the issue to the AOJ for appropriate action in April 2012; however, there is no indication that any action has been taken by the AOJ.  Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015). 

The issues of entitlement to service connection for bilateral hip and low back conditions and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

During the pendency of the appeal, the Veteran's hearing loss has been no worse than Level I in the right ear and Level IV in the left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, Tables VI, VIA and VII, Diagnostic Code 6100 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

Here, the rating issue arises from the initial award of service connection.  The United States Court of Appeals for Veterans Claims (Court) held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). 

In this case, the Veteran's claim for service connection for the disability on appeal was received in July 2006.  Thereafter, a letter sent to the Veteran in September 2006 provided the notice required under the VCAA.

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

Here, VA made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, VA examination reports, Social Security Administration (SSA) records, and the Veteran's lay statements.  As noted above, the Board remanded this case in March 2015, in part, to obtain outstanding SSA records and VA treatment records dated from 2007 to the present.  In April 2015, the AOJ obtained updated records from the Fresno VA Medical Center (VAMC) and SSA records.  In light of the foregoing, the Board finds that there has been substantial compliance with its January 2015 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  Additionally, neither the Veteran, nor his representative, has identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate his appeal.

The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015).

In this case, the Veteran was afforded VA examinations to evaluate his bilateral hearing loss in December 2006 and May 2015.  The Board finds that the VA examinations are adequate for evaluation purposes because the examiners reviewed the claims file or were otherwise informed of the relevant facts of the Veteran's medical history, considered the lay statements of the Veteran, thoroughly examined the Veteran, and addressed the relevant rating criteria, including the functional effects caused by the Veteran's hearing loss.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (providing that a VA medical examiner must, in the context of an audiological examination, fully describe the functional effects caused by a hearing disability in his or her final report).  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined.  38 C.F.R. § 3.327(a).  The Board also finds that the most recent examination report substantially complies with its March 2015 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claim and that no further examinations are necessary.  

As previously noted, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned in September 2014.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the undersigned specifically noted the issue on appeal, clarified the Veteran's assertions when necessary, and clarified the evidence needed to substantiate the claim.  In addition, in the remand following the Board hearing, the undersigned gave the Veteran the opportunity to undergo a new VA examination in order to obtain up-to-date audiological information in order to decide his claim.  

Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.

The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim.  No further notice or assistance is required.  38 U.S.C.A. § 5103A(a)(2) (West 2014).

II. Initial Rating

Legal Criteria

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § Part 4 (2015).  Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7 (2015). 

In evaluating the extent of hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85, Diagnostic Code 6100.

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.86.

The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86.  A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

In making all determinations, the Board must fully consider the lay assertions of record.  A Veteran is competent to report on that of which he or she has personal knowledge.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2015).

Factual Background

The Veteran reported that he has difficulty hearing and understanding conversations unless the person to whom he is speaking is looking at him.  See May 2015 VA Examination Report.  The Veteran also asserted that he has the most difficulty hearing when watching television or listening to the radio.  See December 2006 VA Examination Report.  At the September 2014 hearing, the Veteran testified that he has difficulty hearing conversations and that he has to ask people to repeat themselves.  

The Veteran underwent a VA examination in December 2006.  The resulting examination report shows puretone thresholds, in decibels, as follows:

Hertz	1,000	2,000	3,000	4,000	

Right	10	15	40	60	
Left	 	10	60	60	55	

The puretone threshold average was 31 decibels in the right ear and 46 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 92 percent in the right ear and 84 percent in the left ear.  These findings translate to a Level I hearing acuity for the right ear and a level II hearing acuity for the left ear under Table VI.  Applying these results to Table VII, a noncompensable disability rating is warranted.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

The Veteran underwent a VA examination in May 2015.  The resulting examination report shows puretone thresholds, in decibels, as follows:

Hertz	1,000	2,000	3,000	4,000	

Right	30	40	60	65	
Left	 	15	65	70	65	

The puretone threshold average was 49 decibels in the right ear and 54 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 96 percent in the right ear and 80 percent in the left ear.  The above audiological findings translate to a Level I hearing acuity for the right ear and a level IV hearing acuity for the left ear under Table VI.  Applying these results to Table VII, a noncompensable disability rating is warranted.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

Analysis

The audiometric testing fails to reflect that the Veteran's current bilateral hearing loss disability meets, or approximates, the criteria for a compensable schedular rating at any time during the appeal period.  

When asked at his Board hearing about current problems from his hearing loss, the Veteran initially referred only to tinnitus; but subsequently reported difficulty hearing conversation while in a car and that his hearing had gotten worse since the 2006 examination.  Subsequent testing did show worsening hearing loss, but that it did not approximate the criteria for a compensable rating.  

Without evidence of bilateral hearing loss which meets the criteria for a compensable rating, the evidence is against a higher schedular rating.  In this case, the Veteran's symptomatology does not meet the criteria for higher evaluations at any time during all periods on appeal.  See 38 C.F.R. §§ 4.71a, Diagnostic Code 5260, 4.85 4.124a, Diagnostic Code 6100 (2015); see also Fenderson, supra.

Extraschedular

The Board has considered the potential application of 38 C.F.R. § 3.321(b)(1), for extraschedular ratings in exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1)(2015); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  

If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

Here, the symptoms associated with the Veteran's service-connected bilateral hearing loss include difficulty comprehending speech, especially with background noise.  The Board finds that the Veteran has not described exceptional or unusual features associated with his hearing loss.  There is no doubting that the Veteran's symptoms cause some impairment in his functioning and capacity.  However, the extent of his impairment is adequately contemplated by the rating criteria, which reasonably describe the effects of his disability.  

The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were meant to measure hearing impairment and provide appropriate compensation to hearing disabled veterans.  52 Fed. Reg. 44,117 (Nov. 18, 1987).  The Veteran has reported the effects of his hearing disability, but the rating criteria are intended to compensate for this impairment.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Consequently, referral of this case for consideration of an extra-schedular rating is not warranted.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).

Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no indications that the combination of the currently service connected disabilities-left ankle fracture, tinnitus and hearing loss, rated a combined 20 percent.  This question may be revisited, by the AOJ or on further appeals, after the service connection claims are finally adjudicated.


ORDER

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


REMAND

The Veteran contends that his bilateral hip and low back conditions are caused by his service-connected left ankle disability.  Specifically, he asserts that his gait changed after injuring his left ankle in service, which resulted in a misalignment of his spine and hips.  See November 2007 Correspondence.  Additionally, he contends that his left leg is shorter than his right due to his in-service ankle fracture, which also causes misalignment of his spine and hips.  See April 2008 Correspondence.

The Veteran was afforded a VA examination in January 2007.  The Veteran described constant pain in his bilateral hips and low back.  On examination, the Veteran walked with a mildly antalgic gait, and he had some difficulty walking on his left heel and toes.  Range of motion of the bilateral hips and low back was limited.  The examiner noted that x-rays had been requested, but not obtained.  The Veteran was diagnosed with hip pain and lumbar degenerative disc disease.  The examiner summarized that the Veteran "demonstrates a decrease in range of motion testing during active, passive, and repetitive movements of his hips and lumbar spine."  The examiner opined that the Veteran's "low back and hip condition is caused by or a result of his service connected left ankle injury."  

Thereafter, in July 2007, x-rays of the hips and lumbar spine showed no abnormalities.  In September 2007, the January 2007 VA examiner provided an addendum to his previous opinion.  The examiner opined that "based upon the lack of documented evidence of degenerative joint disease that was present within one year of separation from the military... [i]t is my opinion service connection is denied."  

.  The Board agrees with the Veteran's representative the "the September 2007 addendum does not clarify exactly how the X-rays invalidate the examiner's earlier opinion."  See April 2016 Post-Remand Brief.  The examiner seems to have improperly required supporting clinical records.  Cf. Dalton v. Nicholson, 21 Vet. App. 23 (2007).

Additionally, the VA examiner did not provide an opinion regarding the aggravation aspect of secondary service connection.  The United States Court of Appeals for Veterans Claims has made it clear than an opinion will be considered inadequate unless it addresses both the "caused by" and "aggravation" avenues for secondary service-connection.  El-Amin v. Shinseki, 26 Vet. App. 136 (2013).  

Furthermore, since the January 2007/September 2007 opinions, additional treatment records have been associated with the claims file, including VA treatment records from November 2009 showing degenerative changes of the lumbar spine and SSA records from March 2010 showing "faint sclerosis" of the lumbar spine and atherosclerosis of the hips.  Additionally, a November 2009 VA physical therapy consultation request indicates that the Veteran had "left hip and back pain probably due to leg length inequality-left leg may be short due to previous fracture of the left ankle."  

The Board is required to seek a new examination.  See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence...is essential for a proper appellate decision").

The TDIU issue is inextricably intertwined with those of entitlement to service connection for bilateral hip and low back disabilities.  Thus, adjudication of the TDIU issue is deferred.  See Harris v. Derwinski, 1 Vet. App. at 183 (1990) (two issues are inextricably intertwined when they are so closely tied together that a final decision on one could have a negative impact on the other).

Lastly, because the record indicates that the Veteran has been receiving ongoing VA treatment, there may be additional relevant treatment records.

Accordingly, the case is REMANDED for the following action:

1. Obtain all outstanding VA treatment records from November 2014 to the present, documenting treatment for the conditions on appeal.  If no such records are located, that fact should be documented in the claims file.

2. After available records have been obtained and all available records have been associated with the claims file, afford the Veteran an appropriate VA examination(s) to determine the nature, onset, and likely etiology of the Veteran's bilateral hip and low back conditions.  The entire claims file and this Remand must be reviewed by the examiner.  Any tests or studies deemed necessary should be conducted.

The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any current bilateral hip or low back disability, to include sclerosis of the lumbar spine and atherosclerosis of the hips, was (1) caused or (2) aggravated by the service connected left ankle disability.  

The examiner should note whether the baseline level of the hip or low back disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of non-service connected disease or disability.  .

The Veteran contends that his bilateral hip and low back conditions are caused by gait disturbances and a leg length discrepancy due to his service-connected left ankle disability.

The examiner should specifically comment on the 2007 VA examiner's opinions, as well as the November 2009 VA treatment records indicating that a leg length discrepancy might be the cause of the Veteran's bilateral hip and low back pain.  If necessary, and to the extent possible, the examiner should reconcile his or her opinion with these records.

If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  The examiner must provide a rationale for each opinion given.

3. If any decision remains adverse to the Veteran, issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.

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


______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs