Citation Nr: 1633990 Decision Date: 08/29/16 Archive Date: 08/31/16 DOCKET NO. 12-07 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a lung disability, to include as due to asbestos exposure. 2. Entitlement to service connection for a bilateral eye disability. 3. Entitlement to an initial compensable evaluation for a bilateral hearing loss disability prior to March 14, 2013, in excess of 10 percent from March 14, 2013 to October 27, 2013, and in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1961 to July 1963. These matters come before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran appeared before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in October 2013. The record contains a transcript of that hearing. Additionally, evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration. During the course of the appeal, in an April 2013 rating decision, the RO awarded the Veteran a 10 percent disability rating for his bilateral hearing loss disability effective March 14, 2013. Additionally, following remand of the Veteran's claims in June 2014, in an October 2014 rating decision, the RO increased the rating of the Veteran's bilateral hearing loss disability to 20 percent effective October 28, 2013. After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue is still properly before the Board here and the issue has been appropriately rephrased above. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for a bilateral eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's current lung disability, to include lung cancer, is not related to his service or any incident thereof. 2. Prior to March 14, 2013, the Veteran's bilateral hearing loss disability was manifested by no more than level II hearing impairment in the right ear and level IV hearing impairment in the left ear. 3. From March 14, 2013 to October 27, 2013, the Veteran's bilateral hearing loss disability was manifested by no more than level III hearing impairment in the right ear and level V hearing impairment in the left ear. 4. From October 28, 2013, the Veteran's bilateral hearing loss disability is manifested by no more than level IV hearing impairment in the right ear and level VIII hearing impairment in the left ear. CONCLUSIONS OF LAW 1. Lung cancer was not incurred in or aggravated by active service, to include asbestos exposure; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for an initial compensable disability rating for a bilateral hearing loss disability prior to March 14, 2013, a rating in excess of 10 percent from March 15, 2013 to October 27, 2013, and a rating in excess of 20 percent thereafter are not met. See 38 U.S.CA. § 1155 (West 2014); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a lung disability as well as entitlement to an initial increased disability rating for a bilateral hearing loss disability. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in June 2014, the Board most recently remanded the Veteran's lung disability and bilateral hearing loss disability claims and ordered the agency of original jurisdiction (AOJ) to obtain outstanding medical treatment records as well as provide the Veteran with VA examinations for his lung disability and bilateral hearing loss disability claims. The Veteran's claims were to then be readjudicated. Pursuant to the June 2014 Board remand instructions, outstanding medical treatment records were obtained and associated with the Veteran's claims folder. Also, he was provided VA examinations in July 2014 to determine the current severity of his bilateral hearing loss disability and the etiology of his lung disability. The Veteran's claims were then readjudicated via an October 2014 supplemental statement of the case (SSOC). Accordingly, the Board's remand instructions have been complied with regarding the Veteran's bilateral hearing loss disability and lung disability claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Duties to Notify and Assist VA has a duty to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. This notice must specifically inform the claimant of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). In a letter mailed to the Veteran in October 2014, prior to the initial adjudication of his claims, VA satisfied this duty. Also, regarding the Veteran's bilateral hearing loss disability claim, where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated, and there is no need to provide additional § 5103 notice or prejudice from absent notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); VAOPGCPREC 8-2003 (Dec. 22, 2003). VA also has a duty to assist a claimant in the development of his claims. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Here, reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims. The pertinent evidence of record includes statements from the Veteran, service treatment records, and post-service VA and private treatment records. As noted above, the Veteran also was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his service connection and increased rating claims. Here, during the October 2013 Board hearing, the VLJ clarified the issues on appeal (service connection for a lung disability and increased rating for a bilateral hearing loss disability); clarified the concept of service connection and increased rating claims; identified potential evidentiary defects which included evidence of a nexus between the Veteran's lung disability and his service as well as the severity of his bilateral hearing loss disability; clarified the type of evidence that would support the Veteran's claims; and enquired as to the existence of potential outstanding records. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. Additionally, the Veteran was afforded a VA examination for his lung disability in July 2014 and was afforded VA examinations for his bilateral hearing loss disability in November 2010, March 2013, July 2014, and November 2015. The VA examination reports reflect that the examiners interviewed and examined the Veteran, reviewed the his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, the examination reports pertaining to the Veteran's bilateral hearing loss disability contain sufficient information to rate the disability under the appropriate diagnostic criteria. The Board concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board observes that a July 2015 VA audiological evaluation treatment record notes that audiological testing was taken at that time. The Board further observes that the audiogram from the evaluation is not associated with the claims folder. However, the examining audiologist reported that in comparison to the VA audiological examination in June 2014, "there has been no significant change." Further, the Veteran was provided another VA audiological examination in November 2015, and as will be discussed below, the audiological results from that examination do not warrant an increased disability rating. Based on the foregoing, the Board finds that remand for the July 2015 VA audiogram is not warranted. The Board finds that under the circumstances of this case, VA has satisfied the notification and assistance provisions of the law, and that no further action need be undertaken on the Veteran's behalf. Accordingly, the Board will proceed to a decision as to the issues of entitlement to service connection for a lung disability and entitlement to an increased initial disability rating for a bilateral hearing loss disability. Service connection for a lung disability The Veteran contends that he has a lung disability that is related to asbestos exposure while serving in the Navy. See, e.g., the October 2013 Board hearing transcript, page 9. The Veteran's personnel records confirm service aboard the USS Remey and the USS Mills and that his military occupational specialty was a machinist. Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including lung cancer, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Lung cancer is such a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In cases where it is claimed that asbestos exposure during service caused a current disability, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997). According to these administrative protocols, VA must address two questions. First, whether a veteran's service records demonstrate asbestos exposure during active duty. If so, the second question is whether the evidence establishes a relationship between that exposure and the claimed disease. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part IV, Subpart ii, Chapter 2 (August 7, 2015) (M-21). The Board notes that these administrative protocols do not constitute a presumption of asbestos exposure; rather, they are a guideline for adjudication. See VAOPGCPREC 04-2000 (April 13, 2000). With regard to the initial question, regarding asbestos exposure during service, the M21-1 defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Common materials that may contain asbestos include steam pipes for heating units and boilers; ceiling tiles; roofing shingles; wallboard; fire-proofing materials; and thermal insulation. Due to concerns about the safety of asbestos, the use of materials containing asbestos has declined in the United States since the 1970s. M21-1, IV.ii.2.C.2.a. Some of the major occupations involving asbestos exposure include mining; milling; work in shipyards; insulation work; demolition of old buildings; carpentry and construction; manufacture and servicing of friction products, such as clutch facings and brake linings; and manufacture and installation of products, such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1, IV.ii.2.C.2.d. If it is determined that a Veteran was exposed to asbestos during service, the consequent question becomes whether there is a relationship between that exposure and the claimed disease. According to the M21-1, inhalation of asbestos fibers can produce fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum; and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. M21-1, IV.ii.2.C.2.b. Specific effects of exposure to asbestos include lung cancer that originates in the lung parenchyma rather than the bronchi, and eventually develops in about 50 percent of persons with asbestosis; gastrointestinal cancer that develops in 10 percent of persons with asbestosis; urogenital cancer that develops in 10 percent of persons with asbestosis; and mesothelioma that develops in 17 percent of persons with asbestosis. M21-1, IV.ii.2.C.2.c. Disease-causing exposure to asbestos may be brief, and/or indirect. Id. Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer. Mesotheliomas are not associated with cigarette smoking. Id. The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. M21-1, IV.ii.2.C.2.f. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. With respect to a current disability, the Veteran has been diagnosed with lung cancer. See, e.g., a June 2014 VA examination report. Element (1) is therefore satisfied. The Board observes that there are conflicting medical opinions as to whether the Veteran has asbestosis. In this regard, the June 2014 VA examiner indicated after examination of the Veteran and review of his medical history that the Veteran does not have asbestosis. Another VA examiner similarly concluded in a May 2013 report that the Veteran does not have asbestosis. On the contrary, in a private treatment record dated October 2014, W.W., M.D. diagnosed the Veteran with asbestosis. The Board has the authority to "discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board notes that both the United States Court of Appeals for the Federal Circuit and the Court have specifically rejected the "treating physician rule." See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). Rather, in evaluating the probative value of competent medical opinion evidence, the Court has stated in pertinent part: "The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds the opinion of Dr. W.W. to be outweighed, with respect to a current diagnosis of asbestosis, by the highly probative VA examination reports, specifically the July 2014 VA examination report. In this regard, Dr. W.W. did not provide any rationale as to his finding that the Veteran has asbestosis. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. Indeed, the October 2014 private treatment record does not demonstrate that any X-rays of the Veteran's chest were taken or that any previous X-rays were reviewed. It appears that the only basis for the finding of asbestosis was based on the Veteran's report. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]. Crucially, the July 2014 VA examiner documented review of multiple chest X-rays which did not demonstrate asbestosis. Further, the VA examiner provided a thorough examination of the Veteran and considered his past medical history which included the report of in-service asbestos exposure. In light of the foregoing, the Board finds that the July 2014 VA examination is of greater probative value than the private report by Dr. W.W. with regard to whether the Veteran has asbestosis. To the extent that the Veteran asserts that he currently has asbestosis or another asbestos-related disease, the Board observes that lay people are competent to testify to visible or otherwise observable symptoms of disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the Veteran's statements that he has asbestosis relates to an etiological question as to an internal, not directly observable disease such as valvular heart disease, unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. Compare Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis) with Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The lay statements of the Veteran concerning the presence of asbestosis are therefore not competent in this regard, and the Board has placed greater probative weight on the opinion proferred by the VA examiner who opined that the Veteran did not have asbestosis. Accordingly, the Board finds that the Veteran does not currently suffer from asbestosis or other asbestos-related lung disease. With regard to element (2), evidence of an in-service incurrence of a disease or injury, as discussed above, the Veteran essentially contends that while serving on board the USS Remey and the USS Mills, he was exposed to asbestos as his military occupational specialty was a machinist. His service personnel records confirm that he served aboard the USS Remey and the USS Mills and that his military occupational specialty was a machinist. Given the nature of the Veteran's duties, the Board recognizes that it is conceivable that the Veteran worked in close proximity to asbestos while serving aboard a naval vessel. The Veteran's service treatment records, however, show no complaints, treatments or diagnoses of any lung problems. Notably, his entrance and separation examination reports reflect no lung abnormalities. The chest x-ray taken at the Veteran's discharge from service was essentially negative. Turning to crucial element (3), nexus, a preponderance of the competent and probative evidence is against a finding that the Veteran's currently diagnosed lung cancer is related to his service, to include asbestos exposure. The only competent medical opinion of record concerning the issue of nexus is the report of the July 2014 VA examiner. After consideration of the Veteran's medical history, examination of the Veteran, and rendering a diagnosis of lung cancer, the VA examiner concluded that it is less likely than not that the Veteran's current lung cancer is related to service, to include exposure to asbestos. The examiner's rationale for his conclusion was based on his finding that although the Veteran had exposure to asbestos in service, he had no evidence of pleural calcification or other radiological signs of asbestosis. As such, there is no support for the Veteran's claim that the lung cancer is related to presumed asbestos exposure. The July 2014 VA examination report was based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the VA examiner's opinion was consistent with the Veteran's medical history, which is absent any symptomatology of a lung disability for several years after service. The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including shortness of breath), has presented no clinical evidence of a nexus between his lung disability and his service, to include asbestos exposure. As discussed above, the Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to a particular disability. Furthermore, the Veteran is not competent to opine on matters such as the etiology of his current lung disability. Such opinion requires specific medical training in the field of pulmonology and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training in the field of pulmonology to render medical opinions, the Board must find that his contention with regard to a nexus between his lung disability and his service, to include asbestos exposure, to be of minimal probative value and outweighed by the objective evidence which is absent a finding of such. See also 38 C.F.R. § 3.159(a)(1) (2015) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a nexus. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. To the extent that the Veteran contends he has experienced respiratory symptoms since service, the Board initially notes that he is competent to report such symptoms. However, his separation examination indicated normal results for his lungs, and as discussed above, a chest X-ray revealed essentially negative results. The Board therefore finds that statements regarding a continuity of symptoms since service that resulted in the diagnosed lung cancer are outweighed in probative value by the July 1963 separation examination as well as the July 2014 VA examination. Specifically, this objective medical evidence contradicts any assertion that a current lung disability was manifested during active service or is related to injury or disease incurred during active service. In light of the inconsistencies, no probative weight can be assigned to the current statements regarding the onset of lung symptoms. Accordingly, element (3), nexus, is not met, and the Veteran's claim fails on this basis. With respect to presumptive service connection for a chronic disability (i.e., cancer), the Veteran was diagnosed more than one year after his July 1963 separation from service. Therefore, the presumption does not apply. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a lung disability to include as due to asbestos exposure. The benefit sought on appeal is accordingly denied. Higher evaluation for bilateral hearing loss disability Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not significantly changed and a uniform evaluation is warranted. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold and as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. The vertical lines in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. The percentage evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85 (2013). The provisions of 38 C.F.R. § 4.86(a) provide that when the puretone thresholds 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. Each ear will be evaluated separately. The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1000 hertz, and 70 dB 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 is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. The Veteran seeks entitlement to an increased disability rating for his bilateral hearing loss disability, which is currently evaluated as noncompensable (zero percent disabling) under 38 C.F.R. § 4.86(a) (2013). As was explained in the law and regulations section above, the resolution of this issue involves determining the level of hearing acuity in each ear. The Veteran was afforded a VA audiological examination in November 2010. He reported that he was hard of hearing and that he could not hear women's voices and has a hard time making out words as well as environmental sounds. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The November 2010 VA audiological examination report revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 40 45 70 60 54 LEFT 40 55 70 75 60 Speech discrimination scores at that time were 90 percent in the right ear and 78 percent in the left ear. This examination yielded a numerical designation of II in the right ear (50-57 percent average puretone decibel hearing loss, with between 84 and 90 percent speech discrimination) and also a numerical designation of IV for the left ear (58-65 percent average puretone threshold, with between 76 and 82 percent speech discrimination). Entering the category designations into Table VII, a disability percentage evaluation of zero percent is for assignment under Diagnostic Code 6100. The Veteran was afforded a VA audiological examination on March 14, 2013. He reported a gradually progressive hearing loss which continued to cause difficulty understanding women's voices and conversation in general. Further, even with wearing hearing aids, he had difficulty understanding in groups and noisy situations. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The March 2013 VA audiological examination report revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 45 50 65 75 59 LEFT 45 55 65 70 59 Speech discrimination scores at that time were 86 percent in the right ear and 74 percent in the left ear. This examination yielded a numerical designation of III in the right ear (58-65 percent average puretone decibel hearing loss, with between 84 and 90 percent speech discrimination) and also a numerical designation of V for the left ear (58-65 percent average puretone threshold, with between 68 and 74 percent speech discrimination). Entering the category designations into Table VII, a disability percentage evaluation of 10 percent is for assignment under Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in July 2014. He continued to report progressively worse hearing. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The July 2014 VA audiological examination report revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 75 70 63 LEFT 45 60 75 80 65 Speech discrimination scores at that time were 80 percent in the right ear and 64 percent in the left ear. This examination yielded a numerical designation of IV in the right ear (58-65 percent average puretone decibel hearing loss, with between 76 and 82 percent speech discrimination) and also a numerical designation of VI for the left ear (58-65 percent average puretone threshold, with between 60 and 66 percent speech discrimination). Entering the category designations into Table VII, a disability percentage evaluation of 20 percent is for assignment under Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in November 2015. He reported that the hearing loss did not impact ordinary conditions of daily life, including the ability to work. However, the examiner diagnosed the Veteran with continued to report progressively worse hearing. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The November 2015 VA audiological examination report revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 50 60 70 85 66 LEFT 50 65 70 85 68 Speech discrimination scores at that time were 76 percent in the right ear and 56 percent in the left ear. This examination yielded a numerical designation of IV in the right ear (66-73 percent average puretone decibel hearing loss, with between 76 and 82 percent speech discrimination) and also a numerical designation of VIII for the left ear (66-73 percent average puretone threshold, with between 52 and 58 percent speech discrimination). Entering the category designations into Table VII, a disability percentage evaluation of 20 percent is for assignment under Diagnostic Code 6100. The Board adds that VA treatment records document audiological treatment for the Veteran's bilateral hearing loss disability which involved examination and repair of his hearing aids. However, these records do not indicate a higher rating is warranted for the Veteran's bilateral hearing loss disability during any period under consideration. The Board has considered the application of 38 C.F.R. § 4.86 (2015) [exceptional patterns of hearing impairment]. However, the Veteran's hearing loss disability does not meet the criteria under that section. More specifically, the Veteran's hearing tests do not show a result of 30 dB or less at 1000 Hz and a result of 70 dB or more at 2000 Hz, as would be required for application of Table IVA under 38 C.F.R. § 4.86(b). The Veteran also does not meet the criteria for 38 C.F.R. § 4.86(a). Each of the four specified frequencies are not all 55 dB or more in either ear in any audiological examination. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination, and here the Veteran has not presented any evidence that the examinations were defective or that there was any prejudice caused by any deficiency in the examination with regard to noting the functional effects of the hearing loss disability. Indeed, the Veteran reported at the November 2010 and March 2013 VA examinations that he has difficulty hearing women's voices and also has difficulty understanding what is said in groups of people. He further reported at the July 2014 VA examination that his hearing has become progressively worse, and at the October 2013 Board hearing, he testified that he experiences a clicking sound in his left ear and has difficulty hearing women's voices which causes him to ask for words to be repeated. The Board has considered the testimony and statements made by the Veteran regarding his hearing loss. The schedular criteria, however, are specific, and the Veteran's hearing loss is simply not of such severity to warrant a compensable rating prior to March 14, 2013, a rating in excess of 10 percent from March 14, 2013 to October 27, 2013, and a rating in excess of 20 percent thereafter based on audiological testing results of record. See Lendenmann, 3 Vet. App. at 349. Therefore, the Veteran's claim for an initial increased rating for a bilateral hearing loss disability is denied. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA 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). According to the regulation, an extraschedular disability rating is warranted based 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). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected hearing loss are inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral hearing loss with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology with respect to the symptoms he experiences. Specifically, the Veteran primarily reported he has difficulty hearing women's voices and difficulty hearing in groups and noisy situations and that he hears a clicking sound in his left ear which causes difficulty hearing. The current assigned ratings for bilateral hearing loss under Diagnostic Code 6100 contemplate such symptomatology. The regulations that designate decibel loss and speech discrimination for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. Accordingly, a different table of decibel threshold requirements was established (i.e., Table VIA), with the intended effect being to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Those certain patterns of impairment are specifically laid out in the schedule, and this Veteran's hearing thresholds do not qualify. Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Thus, the Board finds that the schedular rating criteria adequately contemplate the Veteran's symptomatology, and that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation 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. In this case, the Veteran's only service-connected disability is the bilateral hearing loss disability. Therefore, the Board finds that referral for consideration of an extraschedular rating for a bilateral hearing loss disability is not warranted. The Board further notes that the Veteran has not contended, nor does the evidence otherwise show, that his bilateral hearing loss disability has caused loss of use of body part such that referral of a claim for special monthly compensation is warranted. Indeed, the competent and probative evidence shows that he continues to function, albeit in a limited capacity, with consideration of this disability. In denying the Veteran's claim for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), 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, while the Veteran has indicated that his bilateral hearing loss disability impacts his employability, he has not contended, nor does the evidence show, that the bilateral hearing loss disability precludes him from obtaining substantial gainful employment. Notably, the Veteran most recently denied any functional impact of the hearing loss with respect to the ability to work during the November 2015 VA examination. Accordingly, the Board concludes that referral of the issue of TDIU for adjudication based on the Court's holding in Rice is not for application. ORDER Entitlement to service connection for a lung disability, to include as due to asbestos exposure is denied. Entitlement to an initial compensable evaluation for a bilateral hearing loss disability prior to March 14, 2013, in excess of 10 percent from March 14, 2013 to October 27, 2013, and in excess of 20 percent thereafter is denied. REMAND With regard to the Veteran's claim of entitlement to service connection for a bilateral eye disability, the Board remanded this claim in June 2014 for the Veteran to be provided a VA examination to determine the etiology of any diagnosed eye disability. The Board in particular noted the Veteran's diagnosed keratoconjunctivitis and cataracts of each eye. Further, the Board requested that the VA examiner provide an opinion as to whether any preexisting eye disability increased in severity during service, and if so, was the increase in severity clearly and unmistakably due to the natural progress of the disorder (i.e., not "aggravated"). The examiner was directed to address the Veteran's treatment for a contusion to the left eye in June 1960 during a period of Naval reserve duty. Moreover, the examiner was directed to address whether any diagnosed eye disability began during the Veteran's active service or is otherwise related to his service, to include treatment for a flash burn to the eyes in February 1963. Pursuant to the Board remand, the Veteran was afforded a VA examination in August 2014 as to his bilateral eye disability claim. After examination of the Veteran, the VA examiner diagnosed the Veteran with cataracts, dry eye, and ocular hypertension. He concluded that the examination revealed evidence of dry eye and age related cataracts. He further reported that the Veteran's "age related cataract is causing mild reduced visual acuity in the left eye. The [V]eteran[']s preexisting eye conditions did not increase in severity during service. The [V]eteran[']s current ocular conditions did not develop during service and are unrelated to documented flash burn that occurred in 1963." The Board finds that the August 2014 VA examination report is inadequate for evaluation purposes. Specifically, the examiner did not specify which diagnosed eye disabilities (dry eye, cataracts, ocular hypertension) preexisted the Veteran's service and which eye disabilities did not preexist service. Also, he did not provide a rationale for his conclusions that the preexisting eye conditions did not increase in severity during service and that any current eye disability did not develop during service other than noting that the Veteran's cataracts are age related. As such, the Board finds that the August 2014 VA examination report is of minimal probative value in evaluation of the Veteran's bilateral eye disability claim. Therefore, the Board finds that an addendum opinion is required in order to determine whether there is clear and unmistakable evidence that the Veteran's current bilateral eye disability preexisted military service and, if it did, whether there is clear and unmistakable evidence that the eye disability was not aggravated by service, or alternatively whether the Veteran has a current bilateral eye disability that is related to his service on a direct basis. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to a medical professional in the appropriate area of expertise for a clarifying medical opinion as to the etiology of the Veteran's bilateral eye disability. Based on the review of the Veteran's claims folder, the examiner is asked to render an opinion as to the following: a. Indicate whether the Veteran has a preexisting eye disability that increased in severity during service, and if so, was the increase in severity clearly and unmistakably due to the natural progress of the disorder (i.e., not "aggravated"). In this regard, please address the Veteran's treatment for a contusion to the left eye in June 1960 during a period of Naval reserve duty. Also, please identify which of the Veteran's diagnosed eye disabilities (dry eye, cataracts, ocular hypertension) preexisted service. b. As to any other diagnosed eye disability, indicate whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability began during the Veteran's active service or is otherwise related to his service, to include treatment for a flash burn to the eyes in February 1963. If the examiner determines that an opinion cannot be made without examination of the Veteran, such examination must be provided. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Then, readjudicate the issue of entitlement to service connection for a bilateral eye disability. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs