Citation Nr: 1626027 Decision Date: 06/29/16 Archive Date: 07/11/16 DOCKET NO. 10-38 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for hypertension, to include as secondary to herbicide exposure and service-connected diabetes mellitus. 2. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure and service-connected diabetes mellitus. 3. Entitlement to service connection for recurrent chronic bronchitis as secondary to herbicide exposure. 4. Entitlement to a compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. Among the medals received for his honorable service are the Vietnam Campaign Medal and the Vietnam Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision as to hypertension, an April 2011 rating decision as to recurrent chronic bronchitis, and a May 2013 rating decision as to left ear hearing loss. These rating decisions were all issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2016. A transcript of that hearing is of record. The issue of entitlement to service connection for hypertension, to include as secondary to herbicide exposure and diabetes mellitus, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an October 2002 rating decision, the RO denied a claim of entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus; the Veteran began, but did not complete, an appeal of the decision, and new and material evidence was not received within the appeal period, so it became final. 2. The request to reopen the claim of service connection for hypertension as secondary to service-connected diabetes mellitus was denied by the RO in August 2006; the Veteran did not appeal that decision, nor was any new and material evidence submitted within the appeal period. 3. Evidence received since the unappealed August 2006 rating decision that denied reopening of the claim for service connection for hypertension as secondary to diabetes mellitus is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for hypertension. 4. The Veteran's recurrent chronic bronchitis was caused by or is otherwise etiologically related to his exposure to herbicides during his service in the Republic of Vietnam. 5. During the appeal period, the Veteran's left ear hearing loss was manifested by hearing acuity which was no worse than Level II. CONCLUSIONS OF LAW 1. The October 2002 rating decision, which denied service connection for hypertension as secondary to service-connected diabetes mellitus, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2002); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2015). 2. The August 2006 rating decision that denied reopening of a claim of service connection for hypertension as secondary to service-connected diabetes mellitus is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2006); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2015). 3. The evidence received since the August 2006 rating decision is new and material; the claim of service connection for hypertension is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2015). 4. The criteria for service connection for recurrent bronchitis as secondary to herbicide exposure have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 5. The criteria for a compensable evaluation for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, DC 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting the request to reopen the claim for service connection for hypertension and the claim for service connection for recurrent chronic bronchitis. Accordingly, any error committed with respect to either the duty to notify or the duty to assist is harmless and will not be further discussed. As to the claim of entitlement to a compensable rating for left ear hearing loss, upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A March 2013 VA letter satisfied the duty to notify provisions. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's service treatment records, private treatment records, and VA treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Although the record indicates that additional private treatment records are not associated with the claims file, there is no indication that these records are related to the Veteran's hearing loss. Therefore, VA's duty to assist in obtaining private treatment records has been met. Loving v. Nicholson, 19 Vet. App. 96, 102-03 (2005). The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). Relevant VA examinations were conducted in April 2013 and March 2016. Although the Veteran has asserted that the April 2013 examination was inadequate due to interference by construction noise, the record does not reflect that the March 2016 examination was inadequate for the purposes rating the Veteran's disability. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner reviewed the claims folder or obtained a medical history from the Veteran, conducted an examination of the Veteran, and provided findings relevant to the criteria for rating the disability. The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issues on appeal and inquired as to any outstanding evidence. The Veteran discussed his treatment history and symptoms during the appeal period, thus fully describing the nature and severity of his disability. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication in the record that any evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Claim to Reopen Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 3.160, 20.201, 20.302. Unless the Chairman of the Board orders reconsideration or one of the other exceptions to finality applies, all Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100; see also 38 U.S.C.A. §§ 511(a), 7103(a), 7104(a). Service connection for hypertension as secondary to service-connected diabetes mellitus was initially denied by an October 2002 rating decision on the grounds that the Veteran was diagnosed with hypertension before being diagnosed with diabetes, and a VA examiner stated that, based on the Veteran's history, it is likely that the Veteran's hypertension is not a complication or result of the diabetes mellitus. The Veteran began but did not perfect an appeal of this rating decision, and new and material evidence was not received within the appeal period. Therefore, the rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2002); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2015). The Veteran's claim to reopen service connection for hypertension as secondary to service-connected diabetes mellitus was denied in an August 2006 rating decision on the grounds that VA had not received new and material evidence. Although the decision characterized the claim as "service connection for hypertension as secondary to the service connected disability of diabetes type II as secondary to exposure to herbicides," the reasons and bases make clear that the AOJ did not consider the hypertension as secondary to herbicides exposure. The characterization of the claim in the decision thus relates to the fact that diabetes mellitus was found to be secondary to herbicides exposure. There was no appeal filed for the rating decision, nor was any new and material evidence received within the appeal period, and the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2006); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2015). Thus, the Veteran's service connection claim may be considered on the merits only if new and material evidence has been received since the prior adjudication. See 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (1996). Although the September 2009 rating decision reopened the claim, RO decisions are not binding on the Board. Consequently, the Board must decide whether new and material evidence has been received to reopen the Veteran's claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Since the last final denial, VA has received additional treatment records indicating continued hypertension, as well as hearing testimony and a Form 9 appeal asserting that the Veteran's hypertension was caused by exposure to herbicides during his service in the Republic of Vietnam. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant of evidence of record at the time of the last prior final denial, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The law is to be read so as to enable reopening rather than precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Disability which is proximately due to, or aggravated by, a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. On review, the Board finds that it has received new and material evidence. The record now contains the Veteran's assertion that he has developed hypertension as a result of his exposure to herbicides in service, which goes to the existence of an in-service event and a nexus between that event and the current disability. This information relates to unestablished facts necessary to substantiate the claim at issue, and raises a reasonable possibility of establishing the claim. 38 C.F.R. §§ 3.156, 4.125(a). Therefore, the evidence is new and material. Such new and material evidence having been received, the claim of entitlement to service connection for hypertension, to include as secondary to herbicide exposure and service-connected diabetes mellitus, is reopened. Recurrent Chronic Bronchitis Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection on a direct-incurrence basis, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Additionally, service connection may be established on a presumptive basis for certain disabilities resulting from exposure to herbicides. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to herbicides, unless there is affirmative evidence to establish that the Veteran was not so exposed during that service. 38 C.F.R. §§ 3.307(a)(6)(iii); VAOPGCPREC 7-93 (1993), 59 Fed. Reg. 4752 (1994). The diseases which are presumed to result from exposure to herbicides include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus, or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchi, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), ischemic heart disease, Parkinson's disease, and B cell leukemias. 38 C.F.R. § 3.309(e). The presumption requires exposure to an herbicide agent and a manifestation of the disease to a compensable degree within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran's service treatment records indicate that he was in Saigon, Vietnam in August 1966, which is during the Vietnam era. Therefore, exposure to herbicides while in service is presumed. 38 C.F.R. § 3.307(a)(6)(iii). Recurrent chronic bronchitis is not one of the diseases for which a nexus with herbicide exposure is presumed. 38 C.F.R. § 3.309(d). Therefore, presumptive service connection based upon herbicide exposure is not available in this case. Although presumptive service connection is not applicable, the Veteran may still establish service connection on a direct-incurrence basis. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). Although the Veteran has not been afforded a VA examination, and relevant private treatment records have not been associated with the claims file, the record contains evidence sufficient to decide the claim. Remand is thus not required in this case. A December 2010 letter from the Veteran's private physician asserted that there is clear evidence of recurrent bronchitis back to the year 2000. The letter writer noted that the Veteran had no history of asthma or bronchitis prior to his service in Vietnam, where he was exposed to herbicides. The doctor opined that there is a known association between herbicide exposure and recurrent chronic bronchitis and lung disease. Given the multiple recurrent episodes and the Veteran's exposure to herbicides, as well as lack of tobacco use to otherwise account for potential recurring bronchitis, the private physician concluded that the Veteran very likely has recurrent chronic bronchitis related to his exposure to herbicides during service in the Republic of Vietnam. As the record contains a positive nexus opinion by the Veteran's treating physician supported by a rationale, the most probative evidence of record is at least in equipoise as to whether the Veteran's recurrent chronic bronchitis was caused by or is otherwise etiologically related to his exposure to herbicides during his service in the Republic of Vietnam. Accordingly, the Board concludes that the criteria for service connection for recurrent bronchitis as secondary to herbicide exposure have been met. Left Ear Hearing Loss Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Turning to the Veteran's hearing loss, VA rating criteria provide ratings from zero (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of pure tone audiometry tests which average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. §§ 4.85-4 .87; Diagnostic Codes 6100 to 6110. The evaluation of hearing impairment applies a rather structured formula which is essentially a mechanical application of the rating schedule to numeric designations after audiology evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In addition, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86). When the average pure tone 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 will be evaluated separately. Id. Based on a thorough review of the evidence, the Board finds that the preponderance of the evidence is against a compensable evaluation for left ear hearing loss. The April 2013 VA examination found that the average puretone threshold in the left ear was 25 decibels, with average meaning at the relevant frequencies of 1000, 2000, 3000, and 4000 Hertz. The average puretone threshold in the right ear was 19 decibels. The Maryland CNC speech recognition score was 100 percent for each ear. The Veteran reported that his hearing loss caused him some difficulty hearing in groups and noisy rooms. A June 2015 VA treatment note indicated that the Veteran's word recognition score for the left ear was 92 percent, and the right ear was 88 percent. Additionally, the Veteran reported that his family comments about how loud he sets the volume when watching television. The Veteran asserted that excessive construction noise interfered with the results of the April 2013 examination. As a result, another examination was conducted in March 2016. This examination found that the average puretone threshold was 35 decibels in the left ear, and 25 decibels in the right ear. The Maryland CNC speech recognition score was 84 percent in the left ear and 92 percent in the right ear. The Veteran reported trouble hearing a conversation when 2-3 people are talking, and problems hearing the television. The March 2016 examiner indicated that it is as likely as not that the Veteran's right ear hearing loss is the result of military noise exposure. However, as the Veteran did not appeal the April 2014 rating decision declining to reopen a claim of service connection for right ear hearing loss, the Board does not have jurisdiction over the issue. During his April 2016 hearing, the Veteran testified that his wife and grandchildren complain that he speaks too loudly. He also reported difficulty keeping track of conversations in a crowd where more than five people are speaking. He asserted that he no longer uses the telephone. Applying the method for evaluating hearing loss to the results of the audiological report reveals, at worst, Level II hearing impairment in the left ear. As the Veteran is only service-connected for his left ear hearing loss, his nonservice-connected right ear is assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). According to Table VII, a noncompensable rating is warranted for this degree of hearing loss. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board notes that the results would be unchanged even if the Board considered the Veteran's right ear hearing loss to be compensable, as the level of right ear hearing loss shown in the record is, at worst, Level II hearing loss. Also, as pure tone thresholds at each of the four specified frequencies have not been shown to be 55 decibels or more, and the pure tone threshold have not been shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the results do not reveal an exceptional pattern of hearing loss. Therefore, Table VIA should not be applied. See 38 C.F.R. § 4.86. While the Board acknowledges the difficulties that the Veteran experiences as a result of his hearing loss, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Thus, the Board must base its determination on the audiological evaluation results of record, and is bound by law to apply VA's rating schedule based on such results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2014); see also Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule does not indicate that the Veteran's hearing loss warrants a compensable rating. The Board must also consider whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration. See 38 C.F.R. § 3.321(b). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence represents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Veteran has primarily reported hearing loss causing difficulty in communication, particularly in groups. The Veteran's hearing loss levels have been appropriately measured by an audiological examination that considered both audiometric testing at specified levels and speech recognition test scores. The rating schedule recognizes a veteran's inability to hear or understand words by including speech recognition testing as part of the rating criteria. Stated another way, the schedular criteria recognizes the communication difficulties that arise with hearing loss. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Table VI were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. As the Veteran's hearing loss was appropriately measured and applied to the rating schedule, the Board finds that the Rating Schedule contemplates all aspects of his disability. Therefore, referral for extraschedular consideration is not warranted. The Board notes that 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, the Board finds no unusual collective or combined effect caused by a combination of the symptoms from the Veteran's service connected disabilities. Ultimately, the Board finds the Veteran's symptoms and functional limitations are reasonably described by the rating criteria for each condition and there is no unusual collective or combined effect. 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. Finally, the Board is cognizant of the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the United States Court of Appeals for Veterans Claims held that a claim for a total rating based on unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the record does not reflect that the Veteran has contended that his hearing loss renders him unemployable. Accordingly, the Board concludes that a claim for a TDIU based on the Veteran's hearing loss has not been raised in conjunction with the Veteran's claim for an increased rating for left ear hearing loss. Thus, the Board finds that the criteria for a compensable rating for the Veteran's left ear hearing loss have not been met at any time. Accordingly, there is no basis for staged rating of the Veteran's hearing loss, and a higher rating must be denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2014); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for hypertension, to include as secondary to herbicide exposure and service-connected diabetes, is reopened, and to this extent only, the appeal is granted. Entitlement to service connection for recurrent chronic bronchitis as secondary to herbicide exposure is granted. Entitlement to a compensable rating for left ear hearing loss is denied. REMAND Although VA has not conceded a relationship between hypertension and Agent Orange, it is significant to note that prior to 2006, the National Academy of Sciences (NAS) placed hypertension in the "Inadequate or Insufficient Evidence" category. However, in its update in 2006, NAS elevated hypertension to the "Limited or Suggestive Evidence" category. Update 2012 provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent Updates. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). The NAS updates are published in the Federal Register by VA, and thus VA is on notice as to the information contained therein. Update 2012 notes that NAS has defined this category of limited or suggestive evidence to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. at 20,309. The suggestive evidence of an association can arguably be sufficient to establish an "indication" that the current disability "may be related" to herbicide exposure during service, as contemplated by 38 U.S.C.A. § 5103A(d)(2)(B). Although a VA examination opinion has been obtained related to the connection between diabetes mellitus and hypertension, the opinion does not address the Veteran's contention that his hypertension was caused by herbicides exposure. The examiner was not asked to address this contention because hypertension is not among the disabilities associated with herbicide exposure under 38 C.F.R. § 3.309(e). However, even though the Veteran is not entitled to service connection on the basis of the 3.309 presumption, VA must still consider whether his hypertension is causally linked to service on a direct basis, to include herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116, and 38 C.F.R. § 3.303. Upon remand, VA should obtain a supplemental opinion to consider whether the Veteran's hypertension is related to herbicide exposure. The claims folder should also be updated to include VA treatment records compiled since January 18, 2016. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). As the claim is being remanded, in the interest of obtaining a complete record, an attempt should be made to obtain the private treatment records from K.D. Medical Group, which indicated in a December 2010 letter in support of the Veteran's bronchitis claim that the Veteran was a regular patient of the practice. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records for the Veteran from the Louisville VA Medical Center and all associated outpatient clinics dated from January 8, 2016 to the present. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All attempts to obtain the records must be documented in the claims file. 2. After obtaining any appropriate authorization, attempt to obtain records of the Veteran's treatment with K.D. Medical Group, which provided a December 2010 letter in support of the Veteran's bronchitis claim. The AOJ must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. If no records are obtained, the AOJ must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered. See 38 U.S.C.A. § 5103A(b)(2)(B) (West 2002 & Supp. 2013)). 3. After completing the above development, forward the claims file to the April 2014 examiner, or another appropriate clinician. After reviewing the claims file, the clinician is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was incurred in or otherwise etiologically related to service, to include exposure to herbicides. A full and complete rationale is required for any opinion provided. The examiner is advised that the absence of a disability on the list of disorders VA presumes to be related to herbicide exposure may not serve as the sole basis for a negative nexus opinion. 4. Thereafter, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant 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 MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs