Citation Nr: 1804493	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  12-19 838	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss.

2. Entitlement to service connection for vertigo.

3. Entitlement to service connection for benign prostatic hypertrophy.  


REPRESENTATION

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


ATTORNEY FOR THE BOARD

A. Smith, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from August 1966 to May 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  

The issues of service connection for vertigo and benign prostatic hypertrophy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's hearing loss was manifested by puretone thresholds, averaged over the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz), of no higher than 26 decibels (dB) for the right ear and no higher than 32 dB for the left ear; the Veteran's speech recognition scores were no lower than 92 percent for each ear.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.85 Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Assist and Notify
VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159.  For the issue decided herein, VA provided adequate notice in a letter sent to the Veteran in March 2010.

The Board finds VA has satisfied its duty to assist the Veteran in the development of the claim as well.  VA has obtained all identified and available service and post-service treatment records, and the VA examination afforded the Veteran in April 2011 is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate).  The examiner considered the Veteran's symptoms and history and conducted puretone and Maryland CNC tests.        

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 and that the Veteran will not be prejudiced as a result of the Board's adjudication of this claim.

Increased Rating 

The Veteran's entire history is reviewed when making disability evaluations.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Additionally, at the time of an initial rating, consideration of the appropriateness of a staged rating is also required.  Fenderson v. West, 12 Vet. App. 119 (1999).  

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  

Ratings for hearing loss disabilities are based on organic impairment of hearing acuity, and an examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85.  

Under 38 C.F.R. § 4.85, to evaluate the degree of disability from defective hearing, VA arrives at the proper designation by mechanical application of Table VI, which is used to determine a Roman numeral designation of I through XI for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average.  38 C.F.R. § 4.85(b).  Table VII (Diagnostic Code 6100) is then used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  38 C.F.R. § 4.85(e).  

Table VIa is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone average threshold.  38 C.F.R. § 4.85(c).  

Merits

Having reviewed the record, the Board determines that the evidence does not support a compensable rating for any period of the appeal.   

A private audiology examination was performed in March 2006.  However, the examination did not include a controlled speech discrimination test (Maryland CNC) or indicate that use of the test was not appropriate for the Veteran.  The Board reiterates that an examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85.  Thus, the March 2006 audiology report is inadequate for determining hearing impairment for VA purposes.  The Board notes, alternatively, that even if these examination results were used without the CNC scores (per Table VIa), they would not result in a compensable rating. 38 C.F.R. §§ 4.85, 4.86.

In April 2011, the Veteran underwent a VA audiological examination.  The examination revealed puretone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Avg
RIGHT
10
10
20
65
26
LEFT
10
10
35
75
32

Speech recognition was 92 percent for both ears.  Mechanical application of Table VI to the April 2011 results yield Roman numeral I for both the right ear and left ear.  Application of Table VII to Roman numeral I for both the poorer and better ear yields a 0 percent rating.  Given the probative evidence, a compensable rating is not warranted.  

The Board acknowledges that in the October 2011 notice of disagreement, the Veteran requested a VA examination in order to receive a CNC score.  However, the Board notes that a CNC score had already been derived from the April 2011 VA examination, and the examiner did not indicate that the CNC score was not appropriate for this Veteran.  As such, the evidence of record is adequate to decide the claim.  

Consideration has also been given to assigning staged ratings.  However, the Board finds that at no time during the period in question has the disability warranted higher schedular ratings than those assigned.  Fenderson v. West, 12 Vet. App. at 119.  At no time during the appeal period did audiological examination results yield a compensable rating.  Accordingly, the Board finds that a uniform rating is warranted.  

In light of the evidence, the Board determines that an initial compensable rating for bilateral hearing loss is not warranted.  


ORDER

Entitlement to a compensable disability rating for bilateral hearing loss is denied.  


REMAND

The Board finds that additional development is needed as to the Veteran's claims for service connection for vertigo and benign prostatic hypertrophy.

Vertigo

The Veteran claims that he has vertigo related to his active service.  In his July 2012 VA 9 form, he indicated that his vertigo is secondary to his hearing loss.  

While the Veteran does not have a current diagnosis for vertigo, he has reported balance issues.  A January 2011 audiology note from Salem VA Medical Center indicates that the Veteran had been struggling with balance issues for years.  While the note indicates that the Veteran denied vertigo, it indicates that he described the dizziness as unsteadiness.  The Court has held that when a veteran claims service connection, he or she is not claiming service connection for a specific diagnosis but for his or her symptoms regardless of the diagnosis, and the claim encompasses the underlying condition, regardless of diagnosis.  Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009).  As such, the Board determines that remand is necessary to determine whether the Veteran has vertigo and if so, whether it is related to his active service, to include the already service-connected hearing loss.

The Board notes that the Veteran has not previously undergone a VA examination for vertigo.  However, the Board determines that an examination is now warranted per McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4).  The record supports that there are persistent, recurrent symptoms of balance issues, an established in-service event of noise trauma, and the Veteran has asserted that his disability may be associated with the in-service event, but the record is insufficient to decide the claim.  As such, the Board determines that the low bar of McClendon v. Nicholson has been met, and the duty to assist has been triggered.

As to the claim for balance issues secondary to hearing loss, the Board notes that both causation and aggravation are relevant.  Therefore, if the examiner determines that the Veteran's condition was not caused by his hearing loss, then an opinion is necessary as to whether the condition was aggravated by his hearing loss.  The Board notes that the term "aggravation" refers to a chronic or permanent worsening of the underlying condition above and beyond its natural progression.    


Benign Prostatic Hypertrophy

The Veteran asserts that his benign prostatic hypertrophy is related to exposure to Agent Orange while in service.  

The Veteran has a current diagnosis for benign prostatic hypertrophy.  A December 2009 report from a private examiner, Dr. J.S., indicates such.  As to exposure to Agent Orange in service, the Veteran has indicated that he was stationed in Vietnam in 1969 and 1970 while TDY with the Air Force as a Crew Chief on an F-102 assigned to Clark AFB, Philippines.  While the Veteran's military personnel records do not indicate service in Vietnam, he has submitted lay statements and photographic evidence in support of his assertions.  Based on this evidence, in the March 2017 supplemental statement of case, the RO conceded exposure to Agent Orange indicating that the evidence shows that the Veteran was stationed in Vietnam.  

Having served in Vietnam during the applicable time period, the Veteran is presumed to have been exposed to Agent Orange.  38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected.  38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e).  38 C.F.R. § 3.309(e) lists the diseases covered by the regulation.  The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010).

The Board notes that 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and while the list includes prostate cancer, it does not include benign prostatic hypertrophy.  Thus, a connection between the Veteran's benign prostatic hypertrophy and herbicide exposure cannot be presumed.  However, service connection could be established on a direct basis.  As such, the Board finds that an examination and medical opinion is necessary regarding any link between the Veteran's benign prostatic hypertrophy and exposure to Agent Orange.  

The Board notes that the Veteran has not previously undergone a VA examination for his benign prostatic hypertrophy.  However, the Board determines that an examination is now warranted per McClendon v. Nicholson.  There is a current diagnosis, an established in-service event, and the Veteran has asserted that his disability may be associated with the in-service event, but the record is insufficient to decide the claim.  As such, the Board determines that the low bar of McClendon v. Nicholson has been met, and the duty to assist has been triggered.  

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and request that he identify any VA or private facilities where he has been treated for his loss of balance/vertigo and his benign prostate hypertrophy.  Obtain any identified VA records that have not already been obtained. For any identified private treatment records, provide the Veteran with an authorization to release private records and if received, obtain these records. 

2. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of his balance issues.

For each opinion requested in this remand, the claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed.

The examiner is also advised that the Veteran is competent to attest to observable symptoms.  If there is a medical basis to support or doubt the Veteran's reports of symptomatology, the examiner should provide a fully reasoned explanation.

Any opinions provided must be accompanied by a rationale.  

As to the Veteran's balance issues, after examining the Veteran, the examiner is asked to clearly identify any vertigo or balance disorders present.  For each diagnosed disorder, the examiner is asked to provide an opinion as to the following:

(a) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is related to the Veteran's active service.

(b) If the above opinion is negative, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the condition was caused (in whole or in part) or aggravated (permanently worsened beyond its natural progression) by the Veteran's bilateral hearing loss.    

3. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of the Veteran's benign prostatic hypertrophy and any relation to Agent Orange exposure.

The examiner is asked to provide an opinion as to the following:

(a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's benign prostatic hypertrophy is related to exposure to Agent Orange or other herbicides.

4. After completing the above actions, readjudicate the claims on appeal.  If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate SSOC and be provided an opportunity to respond.  

Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate.

The appellant 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).






____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs