Citation Nr: 1754550	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  10-27 342	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for a right hip disability, to include as secondary to service-connected intervertebral disc syndrome. 

2.  Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected intervertebral disc syndrome. 

3.  Entitlement to service connection for a bilateral eye disability. 

4.  Entitlement to service connection for a right ear hearing loss disability.    

5.  Entitlement to an initial compensable rating for a left ear hearing loss disability.

6.  Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome on an extraschedular basis.

7.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities ("TDIU").
REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Timbers, Associate Counsel


INTRODUCTION

The Veteran served as a member of the United States Army, with active service from June 1975 through April 1985. 

This appeal comes to the Board of Veterans' Appeals ("Board") from two rating decisions issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Wichita, Kansas (hereinafter Agency of Original Jurisdiction ("AOJ")).  In a September 2008 rating decision, the AOJ denied the Veteran's claim for entitlement to service connection for a right hip disability and a cervical spine disability.  Additionally, the AOJ denied the Veteran's claim for an increased rating of his intervertebral disc syndrome.  Thereafter, the Veteran timely perfected an appeal to the Board. 

During the pendency of this appeal, the Veteran filed a claim for entitlement to service connection for a bilateral eye disability, service connection for a right ear hearing loss disability, and for entitlement to an increased rating of a left ear hearing loss disability.  The AOJ denied this claim in a June 2015 rating decision.  The Board has merged this appeal with the Veteran's appeal stemming from the September 2008 rating decision in the Veteran's Appeals Control and Locator System ("VACOLS").  In so doing, the Board ensured the Veteran's older docket number was preserved and that the Veteran's claims would continue to be considered as of the date the Veteran filed his substantive appeal of the September 2008 rating decision.  

The Veteran testified at a July 2011 Travel Board hearing, held before the undersigned Veterans Law Judge.  During the Veteran's hearing, the issue of entitlement to an award of a TDIU was reasonably raised by his testimony.  As such, the Board inferred a claim for entitlement to a TDIU.  See 38 C.F.R.               § 3.156(b) (2016);  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

In an October 2011 decision and remand order, the Board remanded the Veteran's claims of entitlement to service-connection for a right hip and cervical spine disability to the AOJ for further development, to include the procurement of a new VA examination and opinion.  The October 2011 decision further requested that the AOJ seek additional medical records from the Veteran and VA treatment centers.  The issue of entitlement to an extraschedular rating for a low back disability was additionally remanded, as an intertwined issue to the Veteran's claim for a TDIU.  The AOJ was directed to obtain an updated VA examination to evaluate whether the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment.  A review of the claims file indicates that such development has been completed and that the matters have been properly returned to the Board.  See Stegall v. West, 11 Vet. App. 268 (1998).

Finally, the Board notes that the Veteran's Virtual VA electronic folder contains updated VA treatment records which were not addressed by either the February 2014 or February 2016 Supplemental Statement of the Case.  However, the Board received a May 2017 signed statement from the Veteran's representative waiving initial AOJ consideration of these records.  Accordingly the Board finds appellate consideration may proceed without any prejudice to the Veteran.  See 38 C.F.R. § 20.1304(c) (2016).  

The issue of entitlement to service connection for a bilateral eye disability is addressed in the REMAND portion of this decision below and is REMANDED to the AOJ. 


FINDINGS OF FACT

1.  A right hip disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, arthritis did not manifest within one year of service discharge and was not caused or aggravated by the service-connected lower back intervertebral disc syndrome.

2.  A cervical spine disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, arthritis did not manifest within one year of service discharge and was not caused or aggravated by the service-connected lower back intervertebral disc syndrome.

3.  The Veteran's current right ear hearing loss disability was not incurred during his active duty service, nor may a right ear hearing loss disability be presumed to have been incurred. 

4.  Throughout the period on appeal, the Veteran's service-connected left ear hearing loss disability resulted in no worse than a Level I impairment. 

5.  The functional impairments related to the Veteran's service-connected lower back intervertebral disc syndrome are contemplated by the General Rating Formula for Diseases and Inquiries of the Spine and the currently assigned schedular rating.

6.  Throughout the period on appeal, the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation.



CONCLUSIONS OF LAW

1.  The criteria for service connection for a right hip disability have not been met.  38 U.S.C.A.  §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2016).

2.  The criteria for service connection for a cervical spine disability have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2016).

3.  The criteria for service connection for a right ear hearing loss disability have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2016). 

4.  The criteria for a compensable rating for a left ear hearing loss disability, prior to March 23, 2011 have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014);  38 C.F.R. §§ 3.102, 3.159, 3.385, 4.1, 4.2, 4.3, 4.6, 4.85, 4.86, Diagnostic Code 6100 (2016).

5.  The criteria for an extraschedular rating in excess of 20 percent for lower back intervertebral disc syndrome have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.321(b) (2016).

6.  The criteria for a TDIU have not been met.  38 U.S.C.A. § § 1155, 5103, 5103A, 5107 (West 2014);  38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16 (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process Considerations

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).

A February 2012 letter advised the Veteran of the information and evidence necessary to substantiate his claims for service connection on a direct and secondary basis, as well as his and VA's respective responsibilities in obtaining such evidence and information.  This letter also detailed the information and evidence necessary to substantiate his claim for a TDIU and an increased rating.  Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  In addition, neither the Veteran nor his representative has alleged prejudice with respect to notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

With respect to the propriety of the assigned rating for the service-connected left ear hearing loss, the Veteran has appealed from the original grant of benefits. VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess/Hartman, supra.  In this case, the Veteran's claim for service connection was granted and an initial rating was assigned in the June 2015 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A.         § 5103 (a) notice is required as the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the AOJ and the Board.  A review of the evidentiary record shows the Veteran's service treatment records ("STRs") have been obtained, as have his VA medical records and all identified and available private medical records.  For his part, the Veteran has submitted personal statements, and arguments from his representative.

Based on the foregoing, the Board determines that the AOJ has substantially complied with the October 2011 remand directives by sending the Veteran an appropriate notice letter detailing the information and evidence necessary to substantiate his claim for a TDIU in February 2012, requesting that the Veteran identify any private records and complete any appropriate authorizations to allow VA to obtain such records in February 2012, obtaining the Veteran's updated VA treatment records, obtaining a VA etiology opinion as to the claims for service connection, obtaining an VA examination and opinion as to the claim for a TDIU, as applicable to the instant claims, and, as such, that no further action is necessary in this regard.  See Stegall, supra.

The Veteran was afforded VA examinations in June 2008, April 2010 and October 2012 with respect to the claims for service connection for a right hip disability and a cervical spine disability and a VA audiological evaluation in March 2015 with respect to the claim for service connection for right ear hearing loss.  He was also afforded an examination in October 2012 to determine the impact of his service connected disabilities on his employability.  In this regard, the Board notes that the VA examiners offered etiological opinions as to the claimed disorders and based their conclusion on a review of the record, to include an interview with the Veteran and a full examination.  Moreover, such opinions offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the claims for service connection for a right hip disability, a cervical spine disability and left ear hearing loss decided herein has been met. 

The Board notes the argument of the Veteran's representative that the VA examination is not adequate for ratings purposes.  See April 2016 Brief.  The representative first argues that a more contemporaneous VA examination is required to properly evaluate the severity of the Veteran's lumbar spine disability.  However, the Board finds no specific evidence, either cited to by the Veteran or contained within his medical records, which would suggest that the Veteran's lumbar spine disability has worsened.  In its brief, the Veteran's representative states that the Veteran's lumbar spine disability is "worse," but does not provide an explanation as to how his symptoms have worsened.  Although the Veteran has generally reported that he experiences flare-ups which cause functional loss and decreased range of motion within his spine, these symptoms were properly addressed by the October 2012 VA examiner and accompanying opinion.  Therefore, without any specific description of worsened symptoms, the Board considers it unnecessary to obtain a new examination or opinion.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also VAOPGCPREC 11-95 (1995) (holding that the mere passage of time is not a sufficient basis to remand for a new VA examination in an increased rating claim where there is no evidence that the underlying disability has worsened in severity).  This argument is therefore without merit.

Second, the Veteran's representative generally argues that the VA opinion is inadequate as he was not provided with a thorough examination by a qualified specialist, that the examiner did not consider the Veteran's service treatment records and that the examination report does not properly address service connection.  Specific argument in support of these contentions was not provided.  

The Board finds that the examiner who conducted the October 2012 VA examination was competent to evaluate the Veteran's right hip and cervical spine disabilities.  The Veteran's representative generally asserts that this examination is inadequate but has not pointed to any deficiency in the examination report or explain why the examiner was incompetent to render the etiology opinions.  It is well established that the medical education and training of a nurse practitioner allows him or her to provide competent medical diagnoses, statements, or opinions. Cox v. Nicholson, 20 Vet. App. 563 (2007).  Moreover, absent further explanation as to why the VA examiner is not qualified, the Board cannot find the presence of clear evidence sufficient to rebut the presumption of competence.  Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013)   As such, the Board presumes that the October 2012 VA examiner was competent to evaluate the Veteran's right hip and cervical spine disabilities. 

Moreover, the Board finds the October 2012 opinion properly addressed all theories of service connection, including direct, presumptive, and secondary.  The examiner cited to the Veteran's longitudinal medical history, including findings within his service medical records and post-service medical records and indicated that she had reviewed the Veteran's claims file.  Given that the pertinent medical history was noted by the examiner, this examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations.  Thus, the Board finds the examination of record is adequate for rating purposes and an additional examination is not necessary regarding the claims adjudicated in this decision.  See also 38 C.F.R. §§ 3.326, 3.327, 4.2.  This argument is therefore without merit.

The Veteran was further provided the opportunity to appear and testify the undersigned Veterans Law Judge during a July 2011 Travel Board hearing.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above 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.  Here, during the July 2011 hearing, the VLJ noted the basis of the prior determination and explained the element of the claim that was lacking to substantiate the Veteran's claim for benefits.  The VLJ specifically noted the issues on appeal, which then included service connection a right hip and cervical spine disability as well as an increased rating for lower back intervertebral disc syndrome.  The Veteran was assisted at the hearing by an accredited representative.  The VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim.  Furthermore, additional development was undertaken subsequent to the hearing in order to ensure that all necessary evidence was of record, which included obtaining the Veteran's VA treatment records and examinations to determine the nature and etiology of his claimed right hip and cervical spine disorders.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error.

Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances the issues decided herein, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991);  see also Sabonis v. Brown,  6 Vet. App. 426, 430 (1994).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.

Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).


II.  Service Connection

A.	Pertinent Statutes and Regulations

The Veteran is seeking service connection for a right hip disability, a cervical spine disability, and a right ear hearing loss disability.  In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.

When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  

Generally, to establish service connection on a direct basis the evidence of record must show: (1) the existence of a current 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.  Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also 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. § 3.30(d).

Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability.  See 38 C.F.R. § 3.310(a).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury.  To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

Additionally, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)).  

As applied to the Veteran's claim, a review of his medical records indicates he has been diagnosed with various forms of arthritis of his right hip and cervical spine.  Therefore, as arthritis is recognized as a chronic disease under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claim.

The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).  In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value.  In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007).

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; 38 C.F.R.              §§ 3.102, 4.3.  A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  For a claim to be denied on the merits, a preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

B.	Right Hip Disability

The Veteran contends his right hip disability is related to his service-connected low back intervertebral disc syndrome.  Specifically, the Veteran states he developed a right hip disability because his chronic low back pain forces him to continuously shift and place all his body weight on his right leg, thereby placing more pressure on the right hip.  See July 2011 Testimony.  As a result of these constant postural changes the Veteran states he has developed a right hip disability.  

As to the first element of service-connection, the Board observes that since separation from military service, the Veteran has been diagnosed with right hip bursitis, right hip degenerative osteoarthritis, right hip subchondral cyst, and right hip internal snapping hip syndrome.  See Associates in Family Health Care Records.  Therefore, the Veteran has satisfied the first element of service connection.  38 U.S.C.A. § 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that the first and most fundamental requirement for any service-connection claim is the existence of a current disability). 

However, based upon a review of the Veteran's longitudinal medical history, the Board finds the Veteran is not entitled to service-connection for a right hip disability, on either a direct, presumptive, or secondary basis.

First, the Board finds the Veteran is not entitled to an award of service connection on either a direct or presumptive basis.  Based upon a review of the Veteran's STRs, the Board finds no evidence that the Veteran's current right hip disability began during his active duty service.  The Veteran's STRs reflect treatment for chronic back pain, which the Veteran at times reported radiated down into his left, and sometimes right, legs.  For example, during a physical examination in May 1978, the Veteran was treated for complaints of back pain.  A physical examination reported the muscles on the Veteran's left lower lumbar region were tight and tender to palpation.  Subsequently, in October 1984, a bone scan was ordered of the Veteran's lower back and right hip.  The results of this scan were wholly normal, showing no evidence a right hip fracture, or other bony abnormality.  

In January 1985, a medical examination was requested to evaluate whether the Veteran should be discharged from service due to medical disabilities of flat feet and low back pain.  During this evaluation, the Veteran denied any symptoms of chronic right hip pain.  When asked about the frequency of his radicular symptoms, the Veteran responded with "not often."  Clinical observations note the Veteran had a normal, and independent gait, and was able to walk on his heels and toes without difficulty.  The Veteran's STRs reflect no subsequent complaints or treatment for a right hip disability.  Therefore, the Board finds the STRs do not reflect any probative evidence which suggests the Veteran experienced an in-service occurrence of a right hip disability.  

Following the Veteran's separation from military service, the Veteran was treated regularly for his lower back pain.  Notably, the Veteran's clinical records contain a February 1986 bone scan report, which lists "mild degenerative joint disease" of both hips as a provisional diagnosis.  See Leavenworth VAMC Records.  However, a review of the attached findings shows that the results of the scan were wholly "normal."  As such, the Board finds that this provisional diagnosis was not supported by the objective medical imagining, and is therefore not entitled to any probative value.  

Thereafter, the Veteran's private medical records and VA treatment records do not reflect any symptoms of a right hip disability or right hip pain.  The Board does observe that these medical records contain intermittent reports of radicular pain, from the Veteran's low back disability, into his right and left legs.  However, a review of the Veteran's treatment records reveals these complaints were sporadic and unsubstantiated by objective testing.  For example, an electromyogram ("EMG") study from February 1986 reported normal findings, with no evidence of lower extremity radiculopathy.  See Leavenworth VAMC Records.  Similarly, physical therapy records dated from January 1989, following a workplace accident, do not reflect any continuous symptoms of right hip pain or radicular right leg symptoms.  

The first post-service report of right hip pain did not occur until at least May 2004, approximately two decades following his separation from active service.  See Associates in Family Health Care Records.  At this time, the Veteran reported symptoms of right hip pain and popping, and was afforded an x-ray.  Based upon a review of the Veteran's x-ray, he was diagnosed with "internal snapping hip syndrome on the right."  However, a subsequent June 2004 magnetic resonance imaging ("MRI") report showed a resolution in the right iliopsoas bursal fluid collection, and thus showing an "improvement" from the earlier report.  

The Board is aware that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991).  However, as outlined above, there is no evidence which suggests the Veteran reported any symptoms of right hip pain on a continual basis following his separation from military service.  The lack of lay symptomatology during this period is noteworthy as the Veteran was receiving regular physical examinations and treatment for his service-connected low back disability.  See Buczynski v. Shinseki, 24 Vet. App. 221 (2011).  Therefore, the Board finds that the Veteran is not entitled to service-connection for a right hip disability based upon continuity of symptoms. 
Some diseases, such as arthritis, are chronic and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service.  However, the Veteran was not diagnosed with right hip arthritis until November 2009.  See Associates in Family Health Care Records.  Therefore, the Veteran does not meet the requirements for presumptive service connection of a chronic disease.  38 C.F.R. §§ 3.307, 3.309.  

These conclusions are consistent with the opinion evidence of record, specifically the opinion of the October 2012 VA examiner.  Following a review of the Veteran's treatment files and a physical examination, the VA examiner concluded that the Veteran's right hip disability was less likely than not incurred in, or caused by, the Veteran's military service.  In support of this conclusion, the examiner cited to the lack of medical treatment for a right hip disability following the Veteran's separation from military service.  For example, the VA examiner referenced an October 2008 MRI report and diagnosis for a right hip subchondral cyst from the Veteran's primary care physician at Associates in Family Care.  The VA examiner stated this MRI report and diagnosis served as evidence that the Veteran's right hip disability is a "recent occurrence," as the diagnosis was reported as "mild" and is clinically an "acute" condition, which disappears over time.  Thereafter, the Veteran did not receive a diagnosis of right hip arthritis until November 2009.  Again, the VA examiner highlighted that this November 2009 diagnosis was for "mild" arthritis, which in her opinion, suggests the Veteran's right hip disability is a recent development.  

The Board observes that the Veteran reported his right hip pain began in 1984 during his October 2012 VA examination.  However, as discussed throughout this decision, the Veteran's report of right hip pain beginning in 1984 are inconsistent with the totality to the evidence of record, and are entitled to less probative weight.  Thus, while the Veteran is competent to report lay symptomatology, the Board finds his lay assertions are outweighed by the clinical findings of record.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding the Board is within its province to weigh testimony and make a credibility determination as to whether that evidence supports a finding of continuity of symptomatology); see also King v. Shinseki, 700 F.3d 1339, 1344 ( 2012) (holding that the Board can favor competent medical evidence over lay statements offered by the Veteran).  

In contrast, the Board finds the October 2012 examiner's opinion is entitled to significant weight.  This negative nexus opinion was rendered by the examiner following a physical examination of the Veteran, and a review of his STRs, private medical records, and VA medical records.  Furthermore, this opinion was supported by a reasoned analysis, with citations to relevant findings in the Veteran's medical records.  Therefore, the Board finds the October 2012 medical opinion to be competent and probative as the Veteran's claim of service connection on a direct and/or presumptive basis.

As to the Veteran's claim of entitlement to service connection for a right hip disability on a secondary basis, the Board finds no probative evidence of record which establishes a nexus between the Veteran's service-connected low back intervertebral disc syndrome, and his current right hip disability.  In response to the Board's October 2011 Remand, the Veteran was afforded a VA examination in October 2012 to ascertain whether his right hip disorder was in any way etiologically related to his service-connected low back intervertebral disc syndrome.  Following a review of the Veteran's claims file and a physical examination, the VA examiner concluded that the Veteran's right hip disability was less likely than not incurred in, or caused by, the Veteran's military service.  Additionally, the VA examiner concluded that the Veteran's right hip disorder was not caused by, or aggravated by, the Veteran's service-connected low back intervertebral disc syndrome. 

As for secondary service connection, the VA examiner concluded there was no clinical evidence of record which supported the development of a right hip disability from the Veteran's service-connected lower back intervertebral disc syndrome.  In support of this conclusion, the VA examiner observed that the Veteran had only recently been diagnosed with right hip arthritis.  However, the Veteran's lower back intervertebral disc syndrome has been service connected since April 1985.  The lack of a long medical history documenting chronic complaints of right hip pain serves as probative evidence against the claim of the Veteran's low back disability aggravating or causing the development of a right hip disability. 

The VA examiner additionally supported her opinion through a review and consideration of available medical literature, including "Up to Date."  Notably, based upon the VA examiner's review of the medical literature and available medical knowledge, she concluded that there were no clinical studies or findings which support the Veteran's theory of development of a hip disability as a progression of a low back intervertebral disc syndrome/disability.  Rather, the medical literature states that lower extremity symptoms, such as radicular pain, sciatica, and other conditions, are the result of a herniated disc or compromise of the spinal cord.  However, the VA examiner noted the Veteran's October MRI report did not show any evidence of spinal cord compromise or disc herniation.  Moreover, during the clinical examination, the Veteran denied any radicular symptoms.  

Furthermore, the VA examiner cited the Veteran's June 2008 motor vehicle collision as an intervening cause, and as a likely contributor to the Veteran's current symptoms of right hip pain.  In describing the accident, the Veteran reported that he was traveling at 40 miles per hour when he rear-ended a stopped car with his motorcycle.  See Associates in Family Care Treatment Records.  The Veteran further described sustaining injuries primarily to the right side of his body.  As such, the VA examiner concluded that this motor vehicle collision likely contributed to the Veteran's right hip disability.  Notably, as described above, the Veteran was not diagnosed with right hip arthritis until after this motor vehicle collision.  See November 2009 MRI Report.  Based upon the sequence of events, the VA examiner opined that it was logical to infer that the Veteran's current right hip disability was a result of this motor vehicle collision.  

Overall, this VA medical examination and opinion was thorough, adequate, supported by an explanation, based on a review of the claims folder, and supported by the probative evidence of record.  Importantly, the Veteran has not submitted any contrary medical nexus opinion of record with regard to his right hip disability.  

Therefore, the Board has reviewed all the medical and lay evidence of record, but finds no probative evidence which warrants a finding of service-connection on either a direct, presumptive, or secondary basis.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a right hip disability.  38 U.S.C.A.      § 5107; 38 C.F.R. § 3.102; Gilbert, supra.

C.	Cervical Spine Disability

The Veteran contends he has developed a cervical spine disability as a result of his service-connected low back intervertebral disc syndrome.  Specifically, during his July 2011 hearing, the Veteran testified his private pain physician, Dr. W, had advised him that his cervical spine disability was the result of "spreading" from his lower back disability, and would continue to progress throughout his lifetime.  

Review of the Veteran's medical records shows he was diagnosed with arthrosis of the cervical spine in April 2002.  In a subsequent July 2005 MRI report, the Veteran was diagnosed with degenerative arthritis of the cervical spine.  Therefore, the Veteran has satisfied the first element of service connection.  See 38 U.S.C.A.         § 1131; See also Boyer, 210 F.3d at 1353.  

The Veteran does not contend that his cervical spine disability is directly related to his active duty service.  Likewise, the evidence of record does not suggest that the current cervical spine disability is directly related to service.  Service treatment records are silent for complaints of, a diagnosis of, or treatment for any neck or cervical spine disability.  While the Veteran did complain of throat pain at various intervals, the Board notes a December 1984 x-ray of the neck reported the Veteran's "joint space and bony alignment [were] normal."  Furthermore, in statements to the Board and to his medical providers, the Veteran does not allege an onset of neck symptoms until at least April 2002, nearly 17 years following his separation from active duty service.    Here, however, in connection with the claims, the Veteran has only asserted that his cervical spine disability is secondary to his service-connected lower back intervertebral disc syndrome.  Given the complete absence of evidence or allegation that a cervical spine disorder is service related, any further discussion or development on the question of direct service connection is unnecessary, and the Board will limit the remaining discussion to secondary service connection. 

After a review of all the evidence of record, the Board finds that the weight of the competent evidence demonstrates that the Veteran's cervical spine disability is not caused by or aggravated by his service-connected intervertebral disc syndrome.  Specifically, the record does not contain any probative evidence which establishes a nexus between the Veteran's current cervical spine disability and his service-connected intervertebral disc syndrome. 

Rather, the weight of evidence is against the Veteran's claim.  In response to the Board's October 2011 Remand, the Veteran was afforded a VA examination in October 2012 to ascertain whether the Veteran's cervical spine disability was etiologically related to his service-connected lower back intervertebral disc syndrome.  Following a review of the Veteran's claims file and a physical examination, the VA examiner concluded it was less likely than not that the Veteran's current cervical spine disability was caused or aggravated by his low back disability.  In support of this conclusion, the VA examiner identified several intervening causes which she found logically contributed to, caused, and/or worsened the Veteran's cervical spine disability.  First, the VA examiner reported the Veteran was involved in a motor vehicle collision in 1997, which caused "significant injury to the cervical and thoracic spines."  Second, the VA examiner reported the Veteran was involved in a subsequent motor vehicle collision, in June 2008, which caused "right-sided injuries" and caused a "worsening of his neck condition, resulting in surgical fusion" a few months later.  Based upon the sequence of events, the VA examiner opined it was logical to infer that the Veteran's current cervical spine disability was a result of these motor vehicle collisions.  

In formulating her opinion, the October 2012 VA examiner reviewed the Veteran's prior VA examinations, dated in June 2008 and April 2010.  Notably, the June 2008 VA examiner concluded that the Veteran's cervical spine disability was "associated" with his service-connected low back disability, as "a progression" of this condition.  However, the October 2012 VA examiner concluded that this finding was not supported by the clinical evidence of record.  Rather, the October 2012 VA examiner opined the prior VA examiner's opinion was based on the Veteran's subjective statements and his reported medical history.  The June 2008 VA examiner did not review the Veteran's medical files and instead relied upon the Veteran's statements.  Following a review of the Veteran's subsequent medical history, and a physical examination of the Veteran, the October 2012 VA examiner concluded the objective findings of record did not support the Veteran's June 2008 contention that his cervical spine disability was "associated" with and/or a "progression" of his low back intervertebral disc syndrome. 

The VA examiner additionally supported her opinion through a review and consideration of available medical literature, including "Up to Date."  She stated that she had found no clinical study or other findings which support the Veteran's theory of developing a cervical spine disability as a result of his low back disability.  Rather, the VA examiner reported the only impairment which affects the cervical, thoracic, and lumbar spines is a disease called diffuse idiopathic skeletal hyperostosis ("DISH").  However, the VA examiner reported the Veteran's symptoms did not support a diagnosis of DISH.  Specifically, the Veteran's x-rays and MRI reports have described minimal findings of degenerative arthroses and other bony abnormalities.  At no time have the Veteran's radiological reports identified any findings which are consistent with a diagnosis of DISH.  Therefore, the VA examiner concluded the medical literature available did not support a finding of a cervical spine disability as secondary to the Veteran's low back disability.  

Overall, this VA examination and opinion was thorough, adequate, supported by an explanation, based on a review of the claims folder, and supported by the probative evidence of record.  Importantly, the Veteran has not submitted any contrary medical nexus opinion of record with regard to his cervical spine disability.  Therefore, based upon the evidence as outlined above, the Board finds the Veteran is not entitled to an award of service connection for a cervical spine disability as secondary to his service-connected low back disability.  

The Board acknowledges that it must fully consider the lay assertions of record.  This includes the Veteran's July 2011 testimony that his private physician, Dr. W., had advised him that his cervical spine disability was the result of "spreading" from his lower back disability.  In this regard, the Board finds the Veteran is competent to report what comes to him through his senses, and these observations "may provide sufficient support for a claim of service connection."  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  

However, the Board does not find any evidence, lay or medical, which would support the Veteran's July 2011 testimony.   The Veteran's medical records do contain any findings or medical opinions which support a nexus between his current cervical spine disability and his service-connected intervertebral disc syndrome.  Furthermore, while the Veteran is competent to report what he experiences, he is not competent to ascertain the etiology of his current cervical spine disability, and its relation to his service-connected low back disability.  There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render an opinion regarding the etiology of his cervical spine disability.  See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  Therefore, the Board finds the determination and opinion of the October 2012 VA examiner to be more probative and entitled to greater weight. 

Based on all of the foregoing, there is simply no persuasive or competent medical evidence which relates the Veteran's cervical spine disability to his service-connected low back intervertebral disc syndrome.  Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection, on either a direct, presumptive, or secondary basis.  As the evidence is against the Veteran's claim, there is no reasonable doubt to resolve in his favor.  Therefore, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

D.	Right Ear Hearing Loss

The Veteran seeks entitlement to service connection for a right ear hearing loss disability.  In addition to the above discussed general regulations, entitlement to service connection for impaired hearing is subject to additional VA regulations.  Specifically, a hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The Court has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss."  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

As an initial matter, the Board acknowledges that the May 2015 VA audiological examination establishes the presence of a right ear hearing loss disability for VA purposes.  Specifically, during this examination, the examiner reported the Veteran received a 88 percent score for his right ear on the Maryland CNC test.  This score is below the 94 percent threshold score needed to establish a hearing loss disability under VA regulations.  38 C.F.R. § 3.385.  Therefore, the presence of a current right ear hearing loss disability is established. 

The Board additionally finds the Veteran was exposed to loud noises during his time in service.  In statements to the Board, the Veteran argues his current right ear hearing loss disability is a result of his in-service noise exposure.  For example, the Veteran reports that he was exposed to acoustic trauma through gunfire, as a rifleman, and also through field artillery exercises.  See August 2015 Notice of Disagreement and Supporting Statement.  The Veteran's DD-214 reflects that his military occupational specialty ("MOS") was a cannon crewman and military police.  He additionally received decorations for rifle marksmanship.  Accordingly, the Board finds the Veteran was exposed to loud noises, including artillery fire and gun noises, during his active duty service.

Therefore, the primary question before the Board is whether the Veteran's confirmed in-service noise exposure caused his current right ear hearing loss.  However, as will be explained in further detail below, the Board finds no probative or credible evidence which documents the presence of an in-service occurrence of a right ear hearing loss disability. 

Throughout his appeal, the Veteran asserts his current hearing loss was caused by his exposure to gunfire and heavy explosion noises during service.  As a lay person, the Veteran is competent to report what comes to him through his senses, such as experiencing difficulties hearing.  Layno, 6 Vet. App. at 469.  However, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of sensorineural hearing loss.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Therefore, the Board must next evaluate the medical evidence, including the Veteran's STRs, to determine whether a nexus between his current right ear hearing loss and his in-service noise exposure exists.  

The Veteran's STRs have been carefully reviewed and considered, but do not reflect any evidence the Veteran ever sought treatment for or complained of any symptoms of hearing loss during his military service.  Furthermore, a review of the Veteran's enlistment and separation audiological examinations do not suggest the Veteran experienced right ear hearing loss at the level considered a disability under VA Regulations.  For example, the audiometric testing results from the Veteran's October 1975 enlistment and January 1985 separation examinations are summarized in the chart below, with pure tone threshold recorded in decibels:  




HERTZ


RIGHT EAR
500
1000
2000
3000
4000
October 1975 Entrance Exam
10
15
15
X
20
January 1985 Separation Exam
5
5
0
10
5

Thus, a review of the Veteran's entrance and separation audiological examinations fail to establish the presence of a right ear hearing loss disability under the clear requirement of 38 C.F.R. § 3.385.  

The Board has also considered the Veteran's additional in-service audiological examinations which were administered on a periodic basis.  As noted above, the Court has held that a significant decibel increase in pure tone thresholds during service is an important factor for determining an in-service incurrence, even if these shifts do not demonstrate a hearing loss disability under § 3.385.  Hensley, 5 Vet. App. at 159-60.  However, as summarized in the chart below, these periodic examinations do not provide any evidence of significant decibel increase in pure tone thresholds.




HERTZ


RIGHT EAR
500
1000
2000
3000
4000
July 1978 
20
15
5
15
15
June 1979 
15
10
10
10
5
November 1981
15
10
5
X
5

Notably, following the June 1979 audiological examination, the Veteran was diagnosed with moderate high frequency hearing loss in both ears.  The Veteran was given an H-2 profile, and recommended to wear hearing protection while performing duties in hazardous noise areas.  However, as outlined in the chart above, the Veteran did not have a right ear hearing loss disability for VA purposes at the time of this diagnosis.  The Board also observes that the Veteran did not have a right ear hearing loss disability during either of the subsequent November 1981 or January 1985 audiological examinations.  Similarly, no subsequent diagnosis for a right ear hearing loss disability was made within the Veteran's service treatment records and his January 1985 separation examination made no reference or mention to a right ear hearing loss disability.  Therefore, the Board finds this diagnosis was temporary and resolved prior to his separation from active duty service. 

The Veteran was afforded a VA examination in May 2015, where the presence of a right ear hearing loss disability, for VA purposes, was first identified.  The results of this VA audiological examination are summarized in the chart below:




HERTZ



500
1000
2000
3000
4000
RIGHT EAR
25
20
35
50
55

As previously noted, the examiner administered the Maryland CNC speech discrimination test.  The Veteran scored 88 percent within his right ear, which establishes the presence of a right ear hearing loss disability for VA purposes.  38 C.F.R. § 3.385.

With regard to a nexus, the May 2015 VA examiner opined that the Veteran's right ear hearing loss disability was less likely than not related to his active duty service.  The examiner reasoned that military hearing tests revealed no significant change in right ear hearing sensitivity during service and cited to the June 1979 examination as evidence that the right ear hearing was not damaged by the Veteran's in-service noise exposure.  The examiner observed the Veteran developed evidence of a left ear hearing loss disability during service which was consistent with a "head shadow effect" when firing a rifle.  The VA examiner explained that the right ear was protected by the Veteran's head as he lifted and held the rifle close to his left ear when firing.  Thus, as the Veteran's service treatment records provided evidence of a left ear hearing loss disability, but not a right, the VA examiner concluded that the Veteran's current right ear hearing loss disability was less likely than not related to his active duty service.  

The Board finds the opinion of the May 2015 VA examiner to be both credible and probative as to the Veteran's claim of service connection.  This opinion was based upon a review of the Veteran's service treatment records and considered his lay reports of in-service acoustic trauma and symptoms of hearing loss.  The examiner further provided a reasoned analysis for her opinion, with citations to relevant findings in the Veteran's medical records.  As such, the Board finds this medical opinion is entitled to significant weight.  There are no other probative medical opinions of record.

Based on all of the foregoing, there is simply no persuasive or competent medical evidence which suggests the Veteran's current right ear hearing loss disability is etiologically related to his active duty service, including his in-service exposure to acoustic trauma.  Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection.  As the evidence is against the Veteran's claim, there is no reasonable doubt to resolve in his favor.  Therefore, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

III.  Increased Rating

A.  	Left Ear Hearing Loss

The Veteran presently seeks entitlement to an initial compensable rating for his left ear hearing loss disability.  See August 2015 Notice of Disagreement. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities ("Rating Schedule"), found in 38 C.F.R. § 4.1 (2016).  The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Separate diagnostic codes identify the various disabilities and each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.10.  As such, each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.

When there is a question as to which evaluation should be applied to a 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.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.  

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.   38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where, as here, the question for consideration is the propriety of the initial evaluation assigned, the relevant time period for consideration begins on the date that the claim for service connection was filed.  Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  In the instant appeal, that date is November 20, 2014.  Moreover, the Board acknowledges that a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

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); 38 C.F.R. § 4.85.  Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness.  Id.

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.  Each ear will be evaluated separately.  See 38 C.F.R. § 4.86(a).  Similarly, if the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral.  

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

When evaluating a hearing loss disability which is service-connected in only one ear, the non-service connected ear will be assigned a Roman numeral designation for a Level I hearing impairment for purposes of applying Table VII.  See 38 C.F.R. §§ 3.383, 4.85(f).  If, however, service-connected hearing loss in one ear is compensable to a degree of 10 percent or more, and non-service-connected hearing loss in the other ear has, in the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, one auditory threshold of 40 decibels or greater, or three thresholds of 26 decibels or greater, or has a speech recognition score less than 94 percent, the compensable for hearing loss is payable as though the hearing loss was service-connected in both ears.  See 38 C.F.R. §§ 3.383(a)(3), 3.385.  

In order for this provision to apply, the Veteran's service-connected left ear hearing loss must warrant the assignment of a 10 percent rating.  Specifically, the Veteran's left ear hearing loss must be assessed as either a Level X or a Level XI based upon audiological testing.  See 38 C.F.R. § 4.85, Table VI.  However, as will be discussed below, the Veteran's service-connected left ear hearing loss disability resulted in no worse than a Level I hearing impairment during the period on appeal.    

A review of the Veteran's claims file shows he was afforded a VA examination and audiological testing in May 2015.  Audiometric testing was conducted at the exam, and the results are summarized in the chart below, with pure tone thresholds in decibels:




HERTZ



1000
2000
3000
4000
AVG
LEFT
15
20
40
35
27.5

The average pure tone threshold in the Veteran's left ear was approximately 28 decibels.  The VA examiner additionally administered the Maryland CNC word list pursuant to VA regulations.  See 38 C.F.R. § 3.485.  The Veteran attained a 96 percent score in his left ear.  These audiometric findings equate to a Level I hearing loss in the left ear.  Combining a left ear Level I hearing loss, with the then non-service connected Level I right ear hearing loss, results in the assignment of a non-compensable rating.  38 C.F.R. § 4.85, Table VI.

The Board additionally considered the results of the May 2015 VA audiological examination under the provisions of 38 C.F.R. § 4.86, regarding exceptional patterns of hearing impairment.  However, the audiological testing conducted at this examination did not reveal that the Veteran had puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz or a puretone threshold of 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz.  Consequently, the evidence does not support a  compensable disability rating for the Veteran's left ear hearing loss based on an exceptional pattern of hearing.  

The May 2015 VA examiner additionally described the functional effects of the Veteran's left ear hearing loss disability.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  Per the Veteran's lay reports of symptomatology, the examiner explained the Veteran's left ear hearing loss causes him to experience difficulty while watching television, such that he must turn the volume very high. 

A review of the Veteran's treatment records do not reveal any additional audiological testing during the period on appeal.  Therefore, based upon a review of the evidence the Board finds the Veteran is not entitled to a compensable evaluation for his left ear hearing loss. 

The Board has also considered whether the Veteran is entitled to an extraschedular rating for his left ear hearing loss disability.  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.  38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

However, based upon a review of the Veteran's reported symptomatology and the medical evidence of record, the Board finds there is no evidence of an exceptional or unusual circumstance which would warrant referral for extraschedular consideration.  38 C.F.R. § 3.321(b)(1).  The Board finds that the Veteran's hearing loss symptomatology is fully addressed by the rating criteria under which it is rated.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria for hearing loss reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing and understanding speech.

The Board notes that the decibel loss and speech discrimination ranges designated 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 amendments of 38 C.F.R. § 4.85, proposed in April 1994, which sought to recognize and address exceptional patterns of hearing impairment which were not fully contemplated by the existing criteria.  See 59 Fed. Reg. 17,295 (Apr. 12, 1994).  The first proposed amendment contemplated a pattern of hearing loss where "speech discrimination tests in a controlled setting are often near normal, [but] they do not reflect the true extent of difficulty understanding speech in the everyday work environment, even with the use of hearing aids." Id. at 17,296.  The second proposed amendment contemplated a pattern of hearing loss constituting "an extreme handicap in the presence of any environmental noise, [which] often cannot be overcome by the use of hearing aids." Id.  The VA explained that "[t]he intended effect of these two new provisions is to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting." Id.  The VA adopted the proposed amendments on May 11, 1999, effective June 10, 1999.  See 64 Fed. Reg. 25,202 (May 11, 1999).

More recently, the Court held that the rating criteria for hearing loss contemplates the functional effects of decreased hearing, as well as difficulty understanding speech, in an everyday work environment.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  In reaching this conclusion, the Court relied upon the plain language of 38 C.F.R. §§ 4.85, 4.86, as well as the above recited regulatory history.  Therefore, per the Court's holding, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.

Accordingly, the Board finds that the Veteran's reported symptoms of difficulty hearing and understanding speech in the presence of background or environmental noise, is a symptom contemplated in the current schedular rating criteria.  The Board additionally finds that the Veteran does not experience any additional symptom not contemplated by the Rating Schedule, such as dizziness, vertigo, or ear pain.  

In conclusion, the Board finds the Veteran's left ear hearing loss symptomatology is fully addressed by the rating criteria, including his inability to comprehend verbal conversations.  As such, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left ear hearing loss disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, 22 Vet. App. 111.

In light of the foregoing, the claim must be denied.

B.	Lower Back Intervertebral Disc Syndrome

In October 2011,the Board remanded the issue of entitlement to an extraschedular rating for the Veteran's service-connected lower back intervertebral disc syndrome, was remanded for further development.
The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b)(1) is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008).   If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted.  Id.  See also 38 C.F.R. § 3.321(b)(1).   Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996).  

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun 24 Vet App., at 114.  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).

Having reviewed this case thoroughly, and with due application of the substantive standards for the assignment of an extraschedular rating under 38 C.F.R.                     § 3.321(b)(1), the Board finds that no higher rating is warranted on an extraschedular basis.  The Board does not find that the longitudinal evidence of record shows such an exceptional disability picture that the available schedular rating for the service-connected low back intervertebral disc syndrome is inadequate or impractical for evaluating a disability of the severity experienced by the Veteran.  Rather, a comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.

First, the Board notes the Veteran's disability has been evaluated under both the General Rating Formula for Diseases and Injuries of the Spine, in addition to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  See 38 C.F.R. §§  4.25, 4.71a, Diagnostic Codes 5242 and 5243.  As discussed in the Board's October 2011 decision, the Veteran's lay symptoms and clinical findings were reviewed, and a 20 percent rating was continued under Diagnostic Code 5243, for incapacitating episodes, because it provided the most favorable rating for the Veteran's disability.   However, by evaluating the Veteran's symptoms under both rating criteria, the Board was able to consider the totality of the Veteran's symptoms, including those not specifically enumerated in Diagnostic Code 5243. 

While Diagnostic Code 5243 does not specifically contemplate range of motion, the Veteran's symptoms of decreased motion in his lumbar spine have been considered in the assignment of his 20 percent rating.  The Board's October 2011 decision analyzed the Veteran's ranges of motion under Diagnostic Code 5242 and found to warrant a lesser 10 percent rating.  Similarly, the range of motion testing conducted in the October 2012 VA examination do not alter or increase the current schedular disability assignment, under either Diagnostic Code.  As such, even though the assigned schedular criteria, Diagnostic Code 5243, do not specifically enumerate decreased ranges of motion, these symptoms are accounted for and included in the Board's determination.  

Second, the Board notes that, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, deformity, coordination, or endurance.  38 C.F.R. § 4.40; See also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; deformity; instability of station; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  

Additionally, the Board notes that 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  As such, factors such as requiring periodic medical attention are clearly contemplated in the rating schedule and provided for in the 20 percent rating assigned.

Therefore, the Board finds that the Veteran's current disability rating accounts for his reports of periods of exacerbated pain and flare-ups.  Throughout the pendency of this appeal, the Veteran has reported flare-ups of his low back symptoms on a monthly basis, with exacerbated symptoms lasting for three to seven days on average.  See June 2008 VA Examination, April 2010 VA Examination and October 2012 VA Examination.  While the Veteran's symptoms are undoubtedly worse during these periods, and his mobility and functionality decreased, these limitations are specifically considered in the assignment of his schedular rating.  

Further, 38 C.F.R. § 4.45 considers reductions in the normal excursions of movements, incoordination, impaired ability to execute skilled movements smoothly, deformity, disturbance of locomotion, and interference with sitting, standing, or weight-bearing.  38 C.F.R. § 4.59 also lists weight-bearing as a factor.  Therefore, the Veteran's reported symptoms of a reduced tolerance to sit, stand, and walk for prolonged periods have been considered and are reflected in the assigned schedular rating.  

In the instant appeal, the Board finds that the Veteran's low back intervertebral disc syndrome is manifested almost exclusively by symptoms that are actually contemplated by the schedular criteria.  Given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board finds that the schedular criteria reasonably describe the Veteran's disability picture in this case.

Based on the foregoing, the Board finds that the requirements for an extraschedular rating for the Veteran's service-connected low back intervertebral disc syndrome under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).


IV.  TDIU 

The Veteran is seeking entitlement to an award of a TDIU.  In statements to the Board, the Veteran alleges he retired early due to "pain and functional limitations" caused by his service-connected disabilities.  See July 2011 Testimony.  Specifically, the Veteran reported he was forced to retire seven years early, as he could no longer perform his job duties, including climbing stairs and ladders, crawling, and reacting quickly to alarms.  In his August 2012 application for TDIU, the Veteran reported he stopped working in March 2007. 

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155.  Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1).  Total disability may or may not be permanent.  Id.  Total ratings are authorized for any impairment or combination of impairments for which the Rating Schedule prescribes a 100 percent evaluation.  38 C.F.R. § 3.340(a)(2).  

A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities.  38 C.F.R. § 4.16(a).  If there is only one such disability, it must be rated as at least 60-percent disabling, and if there are two or more disabilities, at least one disability must be rated as at least 40-percent disabling and there must be sufficient additional disability to bring the combined rating to at least 70 percent.  Id.  

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  Id.
Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.  While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual, M21-1, Part VI, subpart ii, chapter 2, paragraph F.1.c, defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation "that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income..."

The ability to work sporadically or obtain marginal employment is not substantially gainful employment.  38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment.  38 C.F.R. § 4.16(a).  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable, is different than requiring he prove that he cannot maintain substantially gainful employment.  The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  

Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion.  38 C.F.R. § 4.16(b).  However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age.  38 C.F.R.          §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose, 4 Vet. App. at 363. 

Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating.  38 C.F.R. §§ 3.341(a), 4.16(a), 4.19.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In the instant appeal, the Veteran contends he is unable to work due to a combination of his service-connected disabilities.  See November 2015 Appellant Brief.  As for his education and prior work history, the Veteran has reported attending four years of high school.  See August 2012 Application for Entitlement to TDIU.  Thereafter, the Veteran enrolled in the United States Army and he reported he trained/served as a "military police" and "corrections officer" during his active duty service.  Following his separation from military service, the Veteran worked as a Utilities Systems Operator and Repairman at a correctional facility until March 2007.  During his civilian career, the Veteran received job specific training, such as training on utilities systems operations, from 1994 through 1995. 

Initially, the Board finds the Veteran has at no time during the pendency of this appeal met the schedular criteria for an award of a TDIU.  The Veteran is currently service-connected for the following disabilities: lower back intervertebral disc syndrome, rated as 20 percent disabling; left metatarsalgia foot pain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and left ear hearing loss, which is non-compensable.  Therefore, in such instances, where a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R.              § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability.  38 C.F.R. § 4.16(b).  See also Fanning v. Brown, 4 Vet. App. 225 (1993).  

Based upon a review of the Veteran's record, the Board finds referral for consideration of an extraschedular TDIU is not warranted.  Although the Board acknowledges the Veteran experiences limitations as a result of his service connected disabilities, the Board finds the totality of the evidence weighs against an award of a TDIU.  Specifically, the evidentiary record, which includes medical evidence, opinion evidence, and the Veteran's lay assertions, demonstrates the Veteran is not precluded from working due to his service connected disabilities.

A review of the clinical evidence of record, including the medical records and VA examinations, does not reveal any probative evidence which suggests the Veteran is entitled to a TDIU on an extraschedular basis.  Observations of the Veteran during his October 2012 VA examination, in addition to the various physical examinations performed suggest the Veteran is capable of sustaining sedentary employment.  Based upon a review of the Veteran's medical files, consideration of his lay symptomatology, and a physical examination of the Veteran, the October 2012 examiner opined the Veteran would be capable of performing sedentary work.  

The examiner noted that the Veteran had normal range of motion throughout his cervical and lumbar spines and explained that forward flexion is necessary for the completion of many daily activities, and that limitations in extension and lateral rotation will not impair an individual's ability to execute basic tasks.  The examiner noted the Veteran had full forward flexion of the thoracolumbar spine, to 90 degrees, with pain beginning at 90 degrees.  While the Veteran was more limited in his ability to perform extension and lateral flexion, the examiner explained this would not prevent him from performing daily activities or engaging in sedentary work related tasks.   The examiner noted the Veteran was able to walk with an independent, steady, and normal gait and observed the Veteran was capable of walking "easily," without any signs of pain or favoring of one side, from the parking lot into the VA examination room.  The Veteran was additionally observed to sit for nearly a four hours while reciting his medical history and during his physical examinations.  The examiner reported the Veteran was observed to  "easily" transition between seated, standing, and walking positions throughout the examination.  

Based on these observations, and the Veteran's lay symptomatology, the examiner concluded the Veteran would be capable of performing sedentary employment.  Additionally, the examiner opined the Veteran should be provided with "ergonomic" accommodations, to alleviate his reports of neck pain with prolonged sitting.  The Board notes that the Veteran has not been awarded service connection for a cervical spine disability.

As to the Veteran's service connected left ear hearing loss, the Board finds no evidence which suggests this disability precluded the Veteran from obtaining and maintaining substantial gainful employment.  During his May 2015 VA audiological examination, the Veteran reported an inability to hear the television as his only functional limitation.  As for tinnitus, the Veteran alleged that he will "sometimes" have a headache, but did not report this impaired his ability to perform daily tasks or concentrate.  Furthermore, the examiner did not report the Veteran's hearing loss and/or tinnitus would impact his ability to work.  Moreover, the there is no probative evidence showing that the Veteran's service-connected left foot disability prevented the Veteran from engaging is a substantially gainful occupation.

In sum, while the examiners observed limitations that impacted the Veteran's ability to perform physical labor, there is simply no competent medical evidence to support the finding that the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability.  In addition, the October 2012 VA examiner found that the Veteran could still perform sedentary work even in light of the limitations associated with his service-connected disabilities and provided sufficient rationale for that determination. 

Lastly, the Board finds the Veteran's lay and subjective symptomatology does not suggest an inability to obtain or maintain substantially gainful employment.  Notably, the Veteran has consistently reported his non-service connected disabilities cause him more pain and functional limitations than his service-connected disabilities.  For example, the Veteran testified his most limiting disability is his cervical spine pain and decreased range of motion.  See July 2011 Hearing Testimony and October 2012 VA Examination.  As such, per the Veteran's own statements, he is not unemployable due to his service connected disabilities.

Therefore, based on the evidence of record, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation.  As such, referral to the Director, Compensation Service, for consideration of a TDIU on an extra-schedular basis is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for a TDIU rating must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102, Gilbert, supra.


ORDER

Service connection for a right hip disability, to include as secondary to service-connected intervertebral disc syndrome, is denied. 

Service connection for a cervical spine disability, to include as secondary to service-connected intervertebral disc syndrome, is denied. 

Service connection for a right ear hearing loss disability is denied. 

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

Entitlement to an increased rating for the Veteran's service-connected low back intervertebral disc syndrome, on an extraschedular basis, is denied.

Entitlement to a TDIU is denied.  


REMAND

Although the Board sincerely regrets the additional delay, the Veteran's claim for service connection for a bilateral eye disability must be remanded before the Board is able to make a determination on the merits.  

The Board finds a remand is required so that the Veteran may be afforded a VA examination.  Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim.  38 C.F.R. § 3.159(c)(4)(i).  

Based upon a review of the clinical records, the Board observes the Veteran has been diagnosed with a variety of eye disabilities, including ocular hypertension, presbyopia, and refractive amblyopia.  See May 2015 Kansas City VAMC Ophthalmological Records.  The Board finds a medical examination and opinion are necessary to determine whether any of these currently diagnosed disabilities are related to the Veteran's in-service treatment for intermittent exotropia and diplopia.  Furthermore, an opinion should be offered regarding whether any diagnosed disorder is a congenital or developmental defect, or a congenital or hereditary disease, and whether any such condition preexisted or was incurred or aggravated by service.  

In general, service connection may not be granted for congenital or developmental defects, as they are not considered a disease or injury for the purpose of service connection.  See 38 C.F.R. § 3.303(c), 4.9.  However, service connection may be granted for a congenital or hereditary disease, as opposed to a defect, where the disease first manifested during service (incurrence), or where it preexisted service but was worsened beyond its normal progression as a result of service (aggravation).  For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration.  In contrast, a "disease" is capable of improvement or deterioration.  In addition, service connection may be granted for any additional disability that results where a congenital or developmental defect is subject to, or aggravated by, a superimposed disease or injury.  See VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990).  

A refractive error the eyes is a developmental defect and not a disease or injury within the meaning of applicable legislation.  In the absence of superimposed disease or injury, service connection is not granted for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  See 38 C.F.R. §§ 3.303(c), 4.9
 
The examiner should address the Veteran's lay assertions of worsened vision and symptoms during his active duty service.  See Layno, 6 Vet. App. at 469 (finding a Veteran is competent to report what comes to him through his senses).  In essence, the Veteran's lay statements serve as evidence that his current eye disability deteriorated during service, and is thus a disease and not a defect.  In Quirin v. Shinseki, 22 Vet.App. 390, 394 (2009), the Court explained that "a defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating,'" and "any worsening - any change at all - might demonstrate that the condition is a disease."  Quirin, 22 Vet. App. at 394-95 (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)).  

Prior to affording the Veteran a VA examination, the AOJ should associate with the Veteran's claims file records of the Veteran's treatment for his claimed bilateral eye disability.  Here, the Board notes that the Veteran has been treated at VA medical facilities, including the Kansas City VAMC.  Updated records from each VA facility where the Veteran seeks treatment should therefore be associated with the Veteran's claims file.  The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file.  

Accordingly, the case is REMANDED for the following action:

1. First, the AOJ should take all appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service.  This should specifically include updated treatment records from VA.

The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed.  If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing.  The Veteran may submit medical records directly to VA.

2.  After any additional medical records have been associated with the claims folder, the AOJ should schedule the Veteran for a VA examination with a qualified medical professional in order to assess the etiology of his bilateral eye disability.  All necessary tests and studies should be conducted.

Access to the VBMS claims file must be made available to the VA examiner for review.  The VA examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective.  

Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to respond to the following questions:  

(a)  Identify any current eye disorders and associated symptomatology.  All lay and medical evidence of record and VA examination reports should be considered.

(b)  If a current eye disability is diagnosed, is such condition considered a congenital or developmental defect, or is it a congenital or hereditary disease?  

For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration.  In contrast, a "disease" is capable of improvement or deterioration.

In determining whether the Veteran's current eye disability is a defect or disease, the examiner must specifically address the Veteran's lay reports of worsened symptoms during service, which the Veteran believes is evidence that his current eye disability deteriorated and is thus a disease, and not a defect. 

(c)  If any current eye disability is a congenital or developmental defect, was it subject to, or aggravated by, a superimposed disease or injury during service which resulted in additional disability?  If so, please identify the additional disability.  Or, was the increase in severity due to the natural progress of the disorder?

(d)  In contrast, if any current eye disability is a congenital or hereditary disease, please state  whether the disease clearly and unmistakably both (i) preexisted the Veteran's entry into active service, and (ii) was not aggravated, beyond the normal progress of the disorder, during or as a result of active service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease)?

(e)  If any current eye disability is not congenital or developmental in nature, or if it did not clearly and unmistakably preexist the Veteran's service, is at least as likely as not (probability of 50 percent or more) that any such disability was incurred in or aggravated by any incident, disease, or injury during service?  

In rendering the above opinions, the examiner must consider and address the following evidence:

(i) The Veteran's October 1975 entrance examination, reporting uncorrected distance visual acuity of 20/20 in the right eye, and 20/25 in the left eye; 

(ii) the June 1979 in-service examination, uncorrected distance visual acuity of 20/20 in the right eye, and 20/60 in the left eye;

(iii) the June 1979 in-service examination where the Veteran was found to be unqualified for a position with air traffic control due to bilateral defective visual acuity, both near and distance; 

(iv) the in-service observations of bilateral exotropia and diplopia; 

(v)  the in-service PULHES profiles assigned to the Veteran for defective visual acuity; and

(vii)  the Veteran's lay assertions of a worsening eye condition during his active duty service (which effectively means the Veteran argues his eye condition deteriorated during service, thus making his disability a disease and not a defect).

It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, such as observable symptomatology and continuity of symptoms.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner must provide a complete rationale for all opinions expressed.  As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s).  A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 

If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.

3.  The AOJ should notify the Veteran that it is his responsibility to report for any scheduled VA examination and to cooperate in the development of the claim, and that the consequences for failure to report for any scheduled VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655.  In the event that the Veteran does not report for any scheduled VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable. 

4.  Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claims on appeal.  If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond.

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).




______________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs