Citation Nr: 18152182 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-53 043 DATE: November 21, 2018 ORDER Entitlement to service connection for arthritis is denied. Entitlement to service connection for blindness is denied. Entitlement to service connection for hypertension is denied. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's osteoarthritis of the knees and shoulders is not shown to be etiologically related to service. 2. The Veteran’s blindness is not shown to be etiologically related to service. 3. The Veteran’s hypertension is not shown to be etiologically related to service. 4. The Veteran's bilateral hearing loss is manifested by Level V hearing loss in the right ear, and by Level V hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis have not been met. 38 U.S.C. §§ 1110, 5103, 5103(A), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The criteria for entitlement to service connection for blindness have not been met. 38 U.S.C. §§ 1110, 5103, 5103(A), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5103, 5103(A), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 4. The criteria for an evaluation in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.85, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service as a Recognized Guerilla in the Philippine Army from October 1944 to November 1945. Although the Veteran requested to testify at a Board hearing on his October 2017 substantive appeal, he withdrew that request in correspondence dated in April 2018. With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2018); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).   Service Connection The Veteran seeks entitlement to service connection for arthritis, blindness, and hypertension. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board 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 a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are 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 order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Service connection can also be established through application of statutory presumptions, including for chronic diseases, such as arthritis and hypertension, when manifested to a compensable degree within one year of separation from service. 38 U.S.C. § 1137; 38 C.F.R. § 3.309(a). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term "chronic disease," whether shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran seeks entitlement to service connection for arthritis, blindness, and hypertension. In particular, he alleges that he suffers from blindness as a result of an “explosion of gun powder.” The Veteran's post-service treatment records, dated as far back as 2005, show diagnoses of hypertension, cataract disorder, osteoarthritis of both knee and shoulder joints, as well as blindness in both eyes secondary to ruptured cataracts. Thus, the current-disability criterion for service connection is met with respect to these claims. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. However, a review of the Veteran’s service records does not reveal any treatment for or diagnoses of symptomatology related to an eye disorder, hypertension, or arthritis, nor does the record show any evidence of an in-service gunpowder explosion. To the contrary, a Physical Examination attached to the Veteran’s October 1945 Personal Record for the Army of the Philippines showed that the Veteran had “normal” eyes (with 20/20 vision, bilaterally), no musculoskeletal defects, and blood pressure of 120/40 mmHg. Although the Veteran was found to be physically disqualified for service in the Army of the Philippines due to “cardiac symptoms,” there was no evidence of blindness, hypertension, and/or arthritis. Similarly, in an October 1945 Affidavit for Philippine Army Personnel, the Veteran did not list any disabilities or injuries in the “Chronological Record of Wounds and Illnesses Incurred” during his period of service. Indeed, the first mention of blindness, hypertension, and/or arthritis occurred in the Veteran’s post-service treatment records dated over 50 years after his separation from service. Significantly, these post-service treatment records do not include etiological opinions linking the Veteran’s current blindness, hypertension, and/or arthritis to his period of service. The Board concedes that the Veteran was not provided with a VA examination specific to his claims of entitlement to service connection for arthritis, blindness, and/or hypertension. Generally, a VA medical examination is required for a service connection claim only when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in-service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, however, his service treatment records do not demonstrate complaints of or treatment for blindness, hypertension, arthritis, or symptoms thereof during his active duty service. As a result, the Board finds the evidence does not demonstrate that an in-service, event, injury, or disease occurred relevant to the Veteran's claimed disabilities, or that these disabilities are otherwise related to active duty. See VAPOGCPREC 27-97, 72 Fed. Reg. 63604 (1997); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Consequently, a VA examination is not warranted. McLendon, 20 Vet. App. at 83. Consideration has been given to the Veteran's contentions that his current blindness, hypertension, and arthritis is related to his military service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issues in this case fall outside the realm of common knowledge of a layperson, as they involve making definitive clinical diagnoses based on specialized knowledge of medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report that he experiences blindness and joint pain, he is not competent to link those complaints to a particular etiology. His assertions are therefore not competent evidence of a medical nexus. Accordingly, the Board finds that the claims of entitlement to service connection for a blindness, hypertension, and arthritis 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 Veteran's claims of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Increased Evaluation The Veteran also seeks entitlement to an evaluation in excess of 20 percent for his service-connected bilateral hearing loss. In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based upon a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns), which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b). However, Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation for hearing impairment based only on the puretone threshold average (i.e., when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc.). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing (using Table VIa). 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. 38 C.F.R. § 4.86(a). 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 results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). Here, the Veteran contends that his service-connected bilateral hearing loss is more disabling than currently evaluated. At all relevant times, the bilateral hearing loss has been evaluated as 20 percent disabling. In May 2017, the Veteran underwent a VA audiological examination, at which time he was diagnosed as having bilateral sensorineural hearing loss. Audiometric testing revealed puretone air conduction thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 55 65 75 LEFT 45 50 55 65 80 The pure tone averages were 63 decibels for the right ear and 63 decibels for the left ear. However, the VA examiner clarified that, “The use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate.” Applying the May 2017 audiometric results to Table VIa of the Rating Schedule (used when the examiner certifies that use of the speech discrimination test is not appropriate) reveals numeric designations of Level V for his right ear and Level V for his left ear. See 38 C.F.R. § 4.85, Table VIa, Diagnostic Code 6100. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 20 percent evaluation for bilateral hearing loss. The rating criteria provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. Here, although the Veteran’s audiological test results demonstrated a puretone threshold of 55 decibels or more in all four frequencies (1000, 2000, 3000, and 4000 Hertz) in his right ear, an evaluation under 38 C.F.R. § 4.86(a) does not result of an evaluation in excess of 20 percent. Additionally, with respect to exceptional patterns of hearing loss, the results do not demonstrate puretone thresholds of 30 decibels or less at 1000 Hertz in either ear. Thus, the Veteran is not entitled to additional consideration under C.F.R. § 4.86(b) for exceptional patterns of hearing impairment for his service-connected bilateral hearing loss. The Board acknowledges that the Veteran submitted a May 2017 audiogram report from the Manila Hearing Aid Center, Inc. However, under 38 C.F.R. 4.85, an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The May 2017 audiogram report from the Manila Hearing Aid Center, Inc., does not satisfy this criteria and, as such, cannot be used in the evaluation of the Veteran’s service-connected hearing loss. The Board also acknowledges the Veteran's contentions regarding the impact of his hearing loss on his daily activities, and VA's obligation to resolve all reasonable doubt in the Veteran's favor. As noted previously, however, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluations to assign. Lendenmann v. Principi, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIa, and VII, Diagnostic Code 6100. The RO and the Board are bound by applicable laws, and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Consideration of factors wholly outside the schedular rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). As the assigned 20 percent evaluation reflects the actual degree of impairment shown since the date of the grant of service connection for the Veteran's hearing loss, there is no basis for staged ratings for this claim. As the preponderance of the evidence is against a compensable rating for bilateral hearing loss, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the record does not show that the Veteran's hearing loss is so exceptional or unusual to a degree that would warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Making this determination requires 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 no extraschedular referral is required as the assigned schedular evaluation is adequate. See id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). In the alternative, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found to be 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). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss is inadequate. 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. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss 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). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel