Citation Nr: 1805319	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  11-29 292	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a low back disorder.

2.  Entitlement to a compensable rating for bilateral hearing loss.

3.  Entitlement to a compensable rating for residuals of an inguinal hernia.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran-Appellant


ATTORNEY FOR THE BOARD

P.S. McLeod, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1962 to September 1987.

This appeal to the Board of Veterans Appeals (BVA/Board) is from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2014, in support of these claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board.  A transcript of the proceeding is of record.

The Board subsequently, in November 2014, remanded these claims to the Agency of Original Jurisdiction (AOJ) for further development.


FINDINGS OF FACT

1.  It is as likely as not the Veteran's present-day low back disorder is the result of an injury he sustained during his time in service.

2.  His hearing acuity is not shown to have been worse than Level II in the right ear, and no worse than Level III in the left ear, for the period on appeal.

3.  For the period on appeal, the most probative evidence of record also is against finding that he has had a bilateral postoperative recurrent, readily reducible hernia well supported by a truss or belt.



CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for a low back disorder.  38 U.S.C. §§ 1131, 5103(a), 5103A, 5107(b (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  The criteria are not met for a compensable rating for bilateral hearing loss.  38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017).

3.  The criteria also are not met for a compensable rating for residuals of an inguinal hernia.  38 C.F.R. § 4.114, DC 7338.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Board is granting the Veteran's claim of entitlement to service connection for a low back disorder.  And as for his claims for increased ratings for his bilateral (left and right ear) hearing loss and for residuals of an inguinal hernia, although instead being denied, VA has met all statutory and regulatory notice and duty to assist obligations.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Moreover, the Board is satisfied there has been compliance, certainly the acceptable substantial compliance, with the November 2014 remand directives, in turn permitting the Board to proceed with its adjudication of these claims.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

II.  Service-Connection Claim

The Veteran contends that his low back disorder is the result of his service, either partially or wholly, including especially because of documented lumbar spine injuries he sustained during his time in service.

To prevail on a direct service connection claim, there must be probative (i.e., competent and credible) evidence of (1) a current disability, (2) in-service incurrence or aggravation of a relevant disease or an injury, and (3) a correlation ("nexus") between the disease or injury in service and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

The Board finds that, resolving all reasonable doubt in the Veteran's favor, the evidence is at least in equipoise regarding whether his low back disorder is owing to his service.  Because the evidence supporting his claim is as probative as the evidence against it, his claim must be granted.  See 38 U.S.C.A § 5107; 38 C.F.R. § 3.102.

It has been conceded in previous RO rating decisions, VA examination reports, and even the Board's prior remand that the Veteran sustained low back injuries during his time in service.  This fact is documented in, and supported by, his service treatment records (STRs) making specific reference to this prior trauma during his many years of service from May 1962 to September 1987.

In November 2014 the Board remanded this claim to have the Veteran undergo another VA compensation examination for additional medical opinion needed to assist in deciding this claim, particularly regarding this claimed relationship or correlation between his present-day low back disorder and his time in service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").


On remand a VA examiner in April 2015 opined that the Veteran's low back disorder was less likely than not etiologically related to his service.  The rationale provided focused on the lack of a reported low back disorder at the time of separation from active duty and the subsequent 23 years prior to a low back disorder first being documented post service in medical records dated in 2006.

While not dispositive, the passage of so many years between discharge from service and the objective documentation of the claimed disability is a factor weighing against this claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor).  See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder).

Conversely, however, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  That said, the Federal Circuit Court went on to indicate in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

In Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc), the Federal Circuit Court cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  And here, in May 2015, the Veteran submitted a letter provided by Dr. R.R., a private physician, indicating that, after reviewing the Veteran's entire medical history, including records from his period of active service, it was "evident that [the Veteran's] [low back] problem started when he was in active military service" and had become more intense since he first reported it in 2006.  Additionally, the Veteran has steadfastly maintained that he has experienced low back pain since separating from service and has offered that he did not seek out medical treatment prior to 2006 simply because the sedentary nature of his civilian job made the pain manageable.  The Board has no inherent reason to question his credibility.  And as the Board noted in the November 2014 remand, he is competent to report what he experiences regarding his low back disorder.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining this is a case-by-case determination).

After weighing the probative evidence of record, the Board finds that the evidence is at least in relative equipoise - meaning as supportive of the claim as against it.  In this circumstance this reasonable doubt must be resolved in the Veteran's favor and the claim granted.  See 38 U.S.C.A § 5107; 38 C.F.R. § 3.102.

III.  Increased-Rating Claims

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Ratings Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. § 4.7.  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14.

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  But consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged" - irrespective of whether an initial or established rating.  See Fenderson v. West, 12 Vet. App. 119 (1999) (initial ratings); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established ratings).


A.  Bilateral Hearing Loss

Ratings for hearing loss disability are determined by considering the pure tone threshold average and speech discrimination percentage scores.  38 C.F.R. § 4.85(b), Table VI.  Disability ratings are assigned by combining a level of hearing loss in each ear.  38 C.F.R. § 4.85(e), Table VII; see Lendenmann v. Principi, 3 Vet. App. 345 (1992) (disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). 

Under 38 C.F.R. § 4.86(a), 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.  Under 38 C.F.R. § 4.86(b), when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever result provides the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately.

In February 2009 the Veteran filed the claim on appeal, asserting that his service-connected bilateral hearing loss was worse than currently evaluated.  At the time his service-connected bilateral hearing loss was (and continues to be) rated noncompensable, so as 0-percent disabling.

February 2009 outpatient records from Bandera Family Health Care include an ear nose and throat (ENT) examination indicating the Veteran's hearing was "grossly normal."  Subsequent outpatient records from the same private provider were negative for any hearing problems in April and May 2009.


In June 2009 the Veteran underwent a VA audiological examination.  The results of the examinations pure tone thresholds, in decibels, were: 


500
1000
2000
3000
4000
R
10
25
40
75
85
L
15
25
60
85
90

The averages, in decibels, were reported as 56 in the right ear and 65 in the left ear.  Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 88 percent in the left ear.  The VA examiner characterized the Veteran's hearing loss as mild to moderately severe sensoneurial hearing loss in the right ear from 2000 to 4000 Hz and moderately severe to profound sensoneurial hearing loss from 200 to 4000 Hz in the left ear.  The VA examiner further opined that there was significant occupational effects manifesting with difficulty hearing and understanding speech in the presence of background noise.

Applying the rating criteria to that test, numeric score of II in the right ear and III in the left ear are obtained.  Table VII of § 4.85 provides for the assignment of noncompensable evaluation for these numeric scores.  

In March 2012 the Veteran underwent another VA audiological examination.  The results of the examinations pure tone thresholds, in decibels, were: 


500
1000
2000
3000
4000
R
10
25
45
75
90
L
10
25
55
75
85

The averages, in decibels, are 49 in the right ear and 51 in the left ear.  Speech recognition was not tested utilizing the Maryland CNC method.  The examiner indicated that the Veteran's hearing had worsened by 10 decibels and 15 decibels but this worsening occurred at the 1500 Hz level.

Applying the rating criteria to that test, numeric score of II in the right ear and III in the left ear are obtained.  Table VII of § 4.85 provides for the assignment of noncompensable evaluation for these numeric scores.  

In April 2012 the Veteran was fitted with new hearing aids.  No audiological examination was provided.  In July 2012 the Veteran was seen by the VA to check his hearing aids.  The Veteran's hearing aids were programmed and repaired following periods of intermittence.  

In June 2014 the Veteran testified before the undersigned judge.  The Veteran indicated that he wore hearing aids.  The Veteran further testified that it was difficult for him to hear a conversation in a social setting, even with his hearing aids.  He also was required to keep his phone on full volume to use it effectively.  

In February 2015 the Veteran underwent his most recent VA audiological examination, on remand.  The results of the examinations pure tone thresholds, in decibels, were: 


500
1000
2000
3000
4000
R
10
30
50
75
85
L
15
30
60
75
80

The averages, in decibels, were reported as 60 in the right ear and 61 in the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 86 percent in the left ear.  The VA examiner described the functional impact on the ordinary conditions of the Veteran's daily life as difficulty in hearing normal conversation.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); see also 38 C.F.R. § 4.10.

Applying the rating criteria to that test, numeric score of II in the right ear and III in the left ear are obtained.  Table VII of § 4.85 provides for the assignment of noncompensable evaluation for these numeric scores.  

A May 2015 letter by Dr. R.R. stated that the Veteran's bilateral hearing problem had become worse over the years and was exacerbated in a crowded place, causing difficulty in "keeping up with a conversation" and "listening to the radio or TV."  The letter did not reference the results of any actual audiological examinations and further stated that the Veteran never used "hearing aids."

In December 2015 the Veteran's representative argued that the VA audiological examinations provided did not "adequately portray the severity of [the Veteran's] condition due to [the examination] having been conducted in the sterile quiet of an audiology booth and does not reflect the severity of [the Veteran's] condition in the aspect of normal daily life."  

As already alluded to, it has been established that an audiologist must provide a description of the functional effects caused by a hearing loss disability.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The VA examinations address the functional and daily life effects of the Veteran's hearing loss disability.  The examinations discuss that the Veteran has difficulty following normal conversations, to include in social situations or with crowd noise and requires a loud volume when watching television and speaking on the phone.  Therefore, the functional and ordinary daily life effects of the Veteran's hearing loss disability have been adequately discussed.

The audiometric evaluations discussed above do not reveal results warranting a compensable evaluation for the Veteran's bilateral hearing loss.  As such, a higher evaluation for this disability is denied for the period on appeal.

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 regulatory history of 38 C.F.R. §§ 4.85 and 4.86. The rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). 

In forming these revisions, VA sought the assistance of the Veterans Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. Through clinical studies of veterans with hearing loss, VHA found that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (Apr. 12, 1994).

The Board acknowledges the Veteran's reported complaints of his bilateral hearing loss disability.  With this in mind the Board has considered the Veteran's statements with regard to his hearing loss disability, as noted in his submitted statements, examination records and hearing testimony before the Board.  For example, he has had complaints of difficulty hearing - especially in the presence of ambient or background noise. However, by its very nature, bilateral hearing loss involves a difficulty with hearing acuity. He has reported having difficulty with hearing acuity. Thus, his reported symptoms are the very symptoms considered in the rating criteria and do not represent an exceptional or unusual disability picture.

Consider also there recently was a panel decision issued on December 13, 2017, by the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) affirming a December 2015 Board decision that, like here, had denied a compensable schedular rating for bilateral hearing loss, as well as referral for a rating based on extra-schedular consideration under 38 C.F.R. § 4.16.  See Rossy v. Shulkin, No. 16-0720 (December 13, 2017). That appeal to the Court was filed after the Court decided Doucette v. Shulkin, 28 Vet. App. 366 (2017), which had affirmed a Board decision denying extra-schedular referral when only the functional effects alleged were aspects of hearing loss. The Court concluded that Doucette directed the outcome of the appeal in Rossy as well. In Doucette, the Court addressed how to conduct an extra-schedular analysis-specifically, the first Thun inquiry-in the contest of a hearing loss claim. The Court held that the rating criteria for §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts. While leaving open the possibility that extra-schedular consideration for hearing loss might be warranted by other symptoms or functional effects associated with that disability, the Court further held that extra-schedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record.

The Court saw no basis to distinguish that appeal from Doucette; as in this case, the only hearing loss problem alleged by the Appellant was difficulty understanding conversations, particularly in noisy or crowded circumstances. Absent other factors, the Court found that this sort of complaint is squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria. The Court found that the Appellant failed to demonstrate any error regarding his bilateral hearing loss. The Court affirmed the Board's decision.

Recognizing all of this, the threshold element for extra-schedular consideration is not met and any further consideration of governing norms or referral to the appropriate VA officials for extra-schedular consideration is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008).

Lastly, the evidence does not otherwise show any symptoms indicative of an unusual or unique disability picture not contemplated by the rating criteria; thus, the schedular criteria are wholly adequate. As a result, extra-schedular referral is not required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).


B.  Inguinal Hernia

The Veteran's inguinal hernia and any consequent residuals are evaluated under Diagnostic Code 7338.  Under this Code, inguinal hernias are rated as follows: small, reducible, or without true hernia protrusion (noncompensable); not operated, but remediable (noncompensable); postoperative recurrent, readily reducible and well supported by truss or belt (10 percent); small, postoperative recurrent, or un-operated irremediable, not well supported by truss, or not readily reducible (30 percent); and large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable (60 percent).  38 C.F.R. § 4.114, DC 7338.

An additional, separate compensable evaluation under DC 7804 is warranted when residual scars are unstable or painful.

In February 2009 the Veteran filed the claim on appeal, asserting that his service-connected inguinal hernia was worse than currently evaluated.  At the time the Veteran's service-connected inguinal hernia was rated noncompensable.

Private medical treatment records dated June 2008 indicate that the Veteran had ongoing groin pain that had not been relieved by several previous revision surgical repairs, which also resulted in scarring.  The scarring was not described as painful or unstable.

In June 2009 the Veteran underwent a VA examination for his service-connected inguinal hernia.  The examiner noted the history of the Veteran's hernia surgeries, including the original right side inguinal hernia in 1985 and a revision in 2005.  An objective physical examination did not indicate the presence of a current hernia and noted no other significant physical findings.  The VA examiner reported that the Veteran was employed full time and that there were no effects on his usual daily activities.


In August 2014 a private physician, Dr. D.M., submitted a letter regarding the Veteran's service-connected inguinal hernia.  The physician stated that, following the January 2005 hernia mesh repair, "as far as I know since that time he has had no complications from this process."  

In March 2015 the Veteran underwent a VA examination for his service-connected inguinal hernia.  The VA examiner indicated that the Veteran's current disability picture was recurrent right inguinal hernia repair with residual soreness and right testicular atrophy.  Objective physical examination of the Veteran revealed no current detectable hernia on either the right or left side.  Scarring was noted as being present and due to the Veteran's prior hernia surgical procedures however there were no scars that manifested as painful or unstable, or with a total area greater than 39 square centimeters.  There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's service-connected inguinal hernia.  The VA examiner further opined that the Veteran's service-connected inguinal hernia did not impact the Veteran's ability to work and noted that he had reviewed the statements from Dr. D.M. regarding the manifestations of the service-connected inguinal hernia since the Veteran's January 2005 surgery.

A May 2015 letter from private physician Dr. R.R. at Bandera Family Health Care provided that the Veteran has not had any further inguinal hernia symptoms and that the condition has been under control since the January 2005 surgery.

The evidence of records does not indicate that the Veteran, during the period on appeal, had a postoperative recurrent inguinal hernia that was readily reducible and well supported by tress or belt.  While the Board acknowledges that the current status of the Veteran's service-connected inguinal hernia is postoperative, and that VA examiners, most recently in May 2015, have classified the hernia as "recurrent," there is no evidence that the Veteran has required the support of a truss or belt during the period on appeal.  The competent and credible medical evidence, to include both private and VA medical opinions and examinations, provides that the Veteran has not has any further hernia complications during the period on appeal.  Additionally the evidence of record does not establish that the Veteran would be entitled to a separate rating for unstable or painful scars as documented in the May 2015 VA examination.  Therefore, the Veteran's disability picture for his service-connected inguinal hernia more closely approximates the disability picture contemplated by a noncompensable rating under DC 7338.  

Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's increased rating claim.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Thus, the benefit of the doubt doctrine is not for application.


ORDER

The claim of entitlement to service connection for a low back disorder is granted.

However, the claims of entitlement to compensable ratings for bilateral hearing loss and for residuals of an inguinal hernia conversely are denied.




____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs