Citation Nr: 1754876	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  16-07 898	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for cold weather injury of the right hand.

2.  Entitlement to service connection for cold weather injury of the left hand.

3.  Entitlement to service connection for cold weather injury of the right foot. 

4.  Entitlement to service connection for cold weather injury of the left foot.

5.  Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD).

6.  Entitlement to service connection for prostate cancer.

7.  Entitlement to an increased rating for bilateral hearing loss, currently evaluated at noncompensable prior to August 24, 2016, and 20 percent thereafter.



REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Jeremy J. Olsen, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from April 1958 to March 1961, to include service in the Republic of Korea.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in January 2016 and March 2017 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  The Veteran does not have any residuals of a cold weather injury to the hands or feet.

2.  The Veteran has not been diagnosed with a psychiatric disability, to include PTSD, at any point during the appeal period.

3.  There is no credible evidence that the Veteran was exposed to herbicides during his military service in Korea.

4.  The preponderance of the competent and credible evidence indicates that the Veteran's current prostate cancer began years after his active military service and was not caused by any incident of service.

5.  For the appeal period prior to August 24, 2016, the Veteran's bilateral hearing loss was manifested by no worse than Level I hearing in the right ear and Level IV hearing in the left.

6.  Since August 24, 2016, the Veteran's bilateral hearing loss is manifested by no worse than Level IV hearing in the right ear and no worse than Level VI in the left.


CONCLUSIONS OF LAW

1.  The criteria for service connection for cold weather injury of the hands and feet are not met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

3.  Prostate cancer was not incurred in or aggravated by service nor may it be presumed to have been so incurred or aggravated. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).

4.  The criteria for a compensable rating for bilateral hearing loss, prior to August 24, 2016, and in excess of 20 percent thereafter, are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. 
§ 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The Veteran has not been afforded an examination in connection with his claims for cold weather residuals, PTSD or prostate cancer.  However, the Board finds that such are not necessary in the instant case.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, VA must consider the following four factors: 1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; 2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; 3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and 4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). 

As concerns the claims for cold weather residuals and PTSD, and with respect to the first factor above, the Board finds that the Veteran does not have a formal diagnosis of a current disability, nor does he have persistent or recurrent symptoms of a disability.  Although he has reported numbness in his hands, and his daughter provided a statement to VA concerning her observations that her father experienced numbness in his hands, neither is competent to diagnose a medical condition, nor opine on whether such is due to in-service cold exposure.  Additionally, there is no formal diagnosis of PTSD in the Veteran's medical files. 

With respect to the third factor, and each of these claims, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Here, there is no evidence of a current disability of any kind.  Additionally, a mere conclusory generalized lay statement that an in-service event or illness caused a claimant to develop a disability is insufficient to require the Secretary to provide an examination.  See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).

As for the Veteran's claim for service connection for prostate cancer, the record in this case is negative for any indication that the Veteran's cancer is associated to service, as there is no evidence of the claimed disabilities in active service or of any association to service.  As will be discussed below, the weight of the evidence shows that the Veteran was not exposed to herbicide agents while in service.  There is probative evidence establishing that the current disabilities manifested many decades after service in Korea in the 1950's, and there is sufficient competent evidence on file for the Board to make a decision on the claim.  As such, the Board finds that VA's duty to provide an examination with an opinion for this claim has not been triggered.  Id.



Cold Weather Injuries

The Veteran asserts that he was exposed to cold weather while serving in Korea and that such exposure caused him to develop injuries to his hands and feet.  Specifically, the Veteran asserts that his in-service duties required him to walk around in the forest and, in doing so, he froze his hands in the cold weather.

Service treatment records are silent for any symptoms, diagnoses, or treatment for any injuries or disorders associated with exposure to cold weather.  In the Veteran's March 1961 exit examination, he denied any swollen or painful joints, skin disorders, foot trouble, or neuritis.  There was no mention of exposure to cold weather.  The examining physician noted no joint, skin, or neurological abnormalities. 

Post-service medical records are likewise silent for any reports of cold exposure or any abnormalities of the extremities.  Recent medical records show that, in October 2013, the Veteran underwent a VA neurological examination that showed a normal system.  In April 2015, the Veteran was examined at a VA physical and he denied any numbness at that time.  A diabetic foot examination at that time showed normal senses, as did an examination of his lower extremities.  In July 2015, the Veteran denied numbness and examination showed his neurological system was normal.  A December 2015 nerve examination showed normal neurology.  

Thus, the Board finds that service connection for residuals of cold injury is not warranted.  The Veteran's reports of exposure to cold weather are credible.  However, he was not diagnosed with any cold injuries in service, nor has he been found to have any cold injuries as is consistent with the service treatment records and his separation examination.  

The Board places greatest probative weight on the aggregate of the Veteran's medical records, to include multiple examinations of his neurological system and extremities, each of which is silent for any cold injury residuals.  While the Veteran is competent to state that he was exposed to cold in service, he has not been shown to be competent to diagnose cold weather injuries such as frostbite.  More importantly, neither he nor any family member who has authored a letter concerning any disability has been shown to have the experience, training, or education necessary to make an etiology opinion that the Veteran currently experiences residuals of exposure to cold weather in service.  Although lay persons are competent to provide opinions on some medical issues, the Board finds that they are not competent to provide a probative opinion as to the specific issue in this case. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  

The Veteran's claims file does not reflect that he experiences any current neurological disability or residuals of a cold weather injury. As a service connection claim requires, at a minimum, medical evidence of a current disability, the claim for service connection for residuals of a cold weather injury is not warranted in this case.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and it must be denied. See 38 U.S.C. § 5107 (b); Gilbert, supra.

Acquired Psychiatric Disability, to include PTSD 

The Veteran seeks service connection for an acquired psychiatric disability, to include PTSD.  The Board notes that in order to grant service connection for PTSD, there must be a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304 (f).

Importantly for the present claim, a disability must be present at the time a claim for VA disability compensation is filed, or during or contemporary to the pendency of the claim, in order to be service connected.  McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency).

For claims such as this one, in which an appeal was certified to the Board after August 4, 2014, diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5).  See 38 C.F.R. § 4.125 (2017); see also Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45, 093 (Aug, 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference the DSM-5). 

However, considering the pertinent evidence in light of the applicable legal authority, the Board finds that service connection for an acquired psychiatric disability, to include PTSD, is not warranted because the weight of the competent, probative evidence establishes that the Veteran does not meet the diagnostic criteria for any mental disorder at this time.

The Veteran's service treatment records are silent for any evidence of a psychiatric disability during service.  His March 1961 separation examination notes a normal psychiatric evaluation.  He expressly denied any depression, excessive worry, memory loss or nervous trouble on the concurrent report of medical history.  

Post-service treatment records show no diagnosis of a psychiatric disability.  An April 2014 depression screening at VA was negative.  In June 2015 the Veteran underwent an evaluation related to memory loss that he was experiencing.  At that time, a mental status exam showed no psychiatric disorders and the Veteran expressly denied experiencing depression.  He reported experiencing some nightmares, but the examiner found no basis for a diagnosis of a psychiatric disability.   In August 2016, the Veteran was seen at VA for a vein issue and was evaluated at that time.  He expressly denied experiencing depression, anxiety, panic attacks, memory changes, agitation or restlessness.  

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C. § 1110; see also McClain, supra.  Accordingly, where, as here, the competent, probative evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra.

As concerns the Veteran's reported in-service stressor-an automobile accident involving a child-the Board notes that entitlement to service connection for PTSD specifically requires credible supporting evidence that the claimed in-service stressor occurred.  In this case, the Board concludes that such credible supporting evidence is not of record to support the Veteran's stressor.  This reported incident does not involve combat with the enemy or fear of hostile military or terrorist activity, which are situations which potentially allow a veteran's lay testimony alone to establish the occurrence of a claimed in-service stressor.  See 38 C.F.R. § 3.304 (f)(2), (3) (2017).

When a veteran's reported stressor is not related to combat, the Veteran's testimony, by itself, cannot as a matter of law establish the occurrence of a noncombat stressor. Instead, the record must contain evidence which corroborates such testimony.  Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  The Board notes that the RO unsuccessfully attempted to corroborate the Veteran's reported stressor with the U.S. Army and Joint Services Records Research Center and issued a memorandum in December 2015 indicating a formal finding of a lack of information required to corroborate this stressor. 

In addition to the evidence above, the Board has considered the Veteran's assertions that he has a psychiatric disability due to his military service; however, his assertions as to diagnosis do not provide persuasive support for the claim.  The matter of whether a veteran meets the diagnostic criteria for a particular psychiatric disability is one within the province of trained professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  As the Veteran is not shown to be other than a layperson without the appropriate training and expertise, he is not competent to render a probative opinion as to the medical matter upon which this claim turns.  While it is in error to categorically reject layperson evidence as incompetent, the Board may consider the facts of a particular case to determine the layperson's competence.  See Davidson, supra.  One factor to consider is the complexity of the question to be determined.  Jandreau, supra.  Here, the matter of whether the Veteran has a current, compensable psychiatric disability, to include PTSD based on DSM-5 criteria-the matter upon which his claim turns-is not a matter within the realm of knowledge of a layperson; rather, such is a complex question that requires education, training and expertise in order to be competently addressed.  Hence, lay assertions in this regard have no probative value.

In conclusion, because the weight of the evidence shows that the Veteran does not meet the diagnostic criteria for a psychiatric disability, to include PTSD, he fails to meet the first requirement of his service connection claim-the existence of the disability for which service connection is sought.  As a result, the remaining criteria of 38 C.F.R. § 3.304 (f) need not be addressed, as service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim on the question of diagnosis, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.  

Prostate Cancer

The Veteran seeks service connection for prostate cancer on the basis of exposure to herbicides in service.  Specifically, he contends that his in-service duties required him to walk in a Korean forest and that the forest was treated with herbicide agents, to include Agent Orange.  

Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service.  38 U.S.C. § 1116 (a)(1); 38 C.F.R. 
§ 3.307 (a)(6).  This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease.  38 C.F.R. § 3.307 (a)(6)(ii).  Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309 (e), it will be presumed that he was exposed to herbicides if he served in Vietnam between January 9, 1962 and May 7, 1975 (i.e., during the Vietnam era), unless there is affirmative evidence establishing he was not exposed to any such agent during that service.  38 U.S.C. 
§ 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). 

Personnel records show that the Veteran served not in Vietnam but in Korea, but not during the time frame wherein his unit would have been presumptively exposed to herbicides.  

The Veteran served in Korea from September 1958 to September 1959.  VA published a final rule in the Federal Register on January 25, 2011 which amended 38 C.F.R. § 3.307 by adding section (a)(6)(iv), establishing presumptive herbicide exposure for certain veterans who served in, or near, the Korean demilitarized zone (DMZ) between April 1, 1968 and August 31, 1971.  The Department of Defense provided VA with the identity of certain military units operating along the DMZ during that time frame.  

However, as the Veteran served in Korea 9 years prior to such dates, and without any evidence that he served in the DMZ as a member of any of the military units presumed to have been exposed to herbicide agents, there is no credible evidence that he was actually exposed to Agent Orange or any other herbicide during his service in Korea.  Therefore, entitlement to service connection for prostate cancer, as presumptively linked to herbicide exposure in service, is not warranted.

Turning to other possible avenues through which service connection could be granted for prostate cancer, there is no record of prostate cancer being diagnosed in service.  Thus, service connection is not warranted under 38 C.F.R. § 3.303(a).  The medical evidence of record shows that the Veteran was diagnosed with prostate cancer in July 2015, some 54 years following his discharge from service.  (The Board notes, parenthetically, that an April 2017 medical examination report from the Veteran's doctor places diagnosis of cancer at April 2016; the report is silent as to etiology of the Veteran's condition.)  Thus, to the extent that the Veteran's prostate cancer is considered a malignant tumor, service connection also is not warranted as presumptively related to military service under 38 C.F.R. §§ 3.307, 3.309.  In addition, there is no evidence of a chronicity in symptoms since service, warranting service connection under 38 C.F.R. § 3.303 (b).

Although the Veteran contends that he has prostate cancer due to service, he is not competent to make this conclusion.  While lay persons are competent to provide opinions on some medical issues, the issue of whether prostate cancer is related to service falls outside the realm of common knowledge of a lay person.  See Kahana, supra; Jandreau; supra.  As such, the Board accords significantly more weight to the medical evidence than to the Veteran's lay assertions and finds that the most probative evidence weighs against the claim of entitlement to service connection.

In summary, the preponderance of the evidence of record indicates that the Veteran's prostate cancer was not shown in service or for many years thereafter, and is not related to service.  Accordingly, service connection is denied.  In reaching such a conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra.

Bilateral Hearing Loss

By way of history, the Veteran was first granted service connection for bilateral hearing loss in June 2006, evaluated at a noncompensable rate effective April 7, 2006.  In August 2015, he filed a claim for an increased disability rating, asserting that his service-connected hearing loss warranted a higher rating.  Subsequently, a rating of 20 percent was assigned as of August 24, 2016. The Veteran disagrees with the assigned ratings for the respective periods.  

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85 (h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, as set out in the Rating Schedule.  38 C.F.R. 
§ 4.85. 

Prior to August 24, 2016

In June 2015, VA audiometric testing showed puretone thresholds (in decibels) for the frequencies of interest (in Hertz) as follows: 


HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
25
60
65
65
54
LEFT
35
65
65
70
59

Speech recognition scores based on the Maryland CNC Test were 92 percent in the right ear and 80 percent in the left ear. 

Based on the above, the Board finds that, prior to August 24, 2016, there has been no evidence presented which reveals compensable hearing loss in accordance with the mechanical formula used by VA under 38 C.F.R. § 4.85.  In addition, application of 38 C.F.R. § 4.86, used for the evaluation of exceptional patterns of hearing impairment, is not warranted. 

Specifically, on evaluation in June 2015-the only examination available for the appeal period prior to August 2016-the Veteran's pure tone threshold average of 54 and speech discrimination score of 92 percent comports to Level I hearing acuity in the right ear using Table VI.  The Veteran's pure tone threshold average of 59 and speech discrimination score of 80 percent results in Level IV hearing acuity in the left ear under Table VI. Utilizing Table VII, these results combine and result in a zero, or noncompensable, rating.

After August 24, 2016

In August 2016, the Veteran underwent a private audiological examination, which revealed the following puretone thresholds, in decibels, as follows:



HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
35
65
70
70
60
LEFT
40
70
70
75
64

The private audiologist indicated that Maryland CNC word testing was not available.  The speech recognition testing performed instead revealed a speech recognition ability of 72 percent in the right ear and 88 percent in the left ear.  The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. 

Because the private audiologist did not employ the Maryland CNC word list, which renders the findings invalid for VA purposes, see 38 C.F.R. § 4.85, her report was provided to a VA examiner in March 2017 for evaluation.  That examiner confirmed that the Veteran's word recognition scores were consistent with those found on VA testing performed in November 2016 (and detailed below), which showed speech recognition of 92 percent in the right ear and 80 in the left.  

However, the Board notes that the August 2016 audiometric test results-when combined with the Maryland CNC results measured in November 2016 and determined to be consistent with the August 2016 testing-equate to Level V hearing in the right ear, and Level III hearing in the left ear.  38 C.F.R. § 4.85. Utilizing Table VII, such results meet the criteria for a 10 percent rating for bilateral hearing loss, rather than the assigned 20.  Employing the findings of the private audiologist-to include the non-Maryland CNC speech recognition scores-results in identical findings.  

However, the Board will not disturb the ratings assigned by the RO, as to do so would constitute a reduction of benefits.  In addition, and importantly, the Veteran underwent additional audiometric testing within 3 months of that test and the results of the additional testing supports a rating of 20 percent. 

To that end, in November 2016, the Veteran was afforded a VA audiological examination, which revealed the following puretone thresholds, in decibels, as follows:


HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
35
65
70
70
60
LEFT
40
70
70
75
64

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 64 percent in the left ear.  The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. Using Table VI, these audiometric test results equate to Level IV hearing in the right ear, and Level VI hearing in the left ear.  38 C.F.R. 
§ 4.85.  Utilizing Table VII, such results meet the criteria for a 20 percent rating.  Id. 

The Board has reviewed the Veteran's available VA treatment records, and such do not reflect any audiometric findings that suggest a higher degree of impairment of hearing acuity exists at any point during the appeal period.

The Board has also considered the Veteran's service-connected bilateral hearing loss under 38 C.F.R. § 4.86, which addresses exceptional patterns of hearing impairment.  However, the audiometric evidence of record does not show that the Veteran's bilateral hearing loss fits the requirements of an unusual pattern of hearing impairment, as pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz are not each at 55 decibels or more, and the pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  Therefore, 38 C.F.R. § 4.86 is not for application in this case.

Also considered is whether additional further staged ratings under Hart, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that at no time during the period in question has the disability warranted higher schedular rating than that which was assigned; as noted above, it has instead discovered periods where a lower assignment is warranted, but will not be implemented.  Therefore, assigning additional staged ratings for the disability is not warranted.

In support of his claim for a higher rating, in September 2015 the Veteran submitted statements authored by his wife and daughters, all of which describe the Veteran's difficulty hearing.  The Board further notes that the Veteran's VA treatment notes document several interactions, via telephone, where his wife or daughters must converse on his behalf with VA medical staff, because the Veteran is unable to hear others when speaking on the phone.  

However, to the extent that the Veteran and his family contend that his hearing loss is more severe than currently evaluated, the Board observes that while the Veteran is competent to report symptoms such as difficulty hearing voices and understanding speech when around multiple people, and his wife and daughters are competent to report their observations of the Veteran's difficulty hearing, none are competent to report that the Veteran's hearing acuity is of sufficient severity to warrant a higher evaluation under VA's tables for rating hearing loss disabilities.  Such an opinion requires medical expertise such as specialized training in evaluating hearing impairment, which neither the Veteran nor his family has been shown to have.  See Davidson, supra; Jandreau, supra; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an increased rating for his service-connected bilateral hearing loss.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 


ORDER

Service connection for cold weather injury of the right hand is denied.

Service connection for cold weather injury of the left hand is denied.

Service connection for cold weather injury of the right foot is denied.

Service connection for cold weather injury of the left foot is denied.

Service connection for an acquired psychiatric disability, to include PTSD, is denied.

Service connection for residuals of prostate cancer as a result of exposure to herbicides is denied.

An increased disability rating for bilateral hearing loss, currently evaluated at noncompensable prior to August 24, 2016 and 20 percent thereafter, is denied. 





____________________________________________
L.M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs