judge_norm: J PARKER

text:
Citation Nr: 1318000
Decision Date: 06/03/13    Archive Date: 06/11/13

DOCKET NO.  10-37 322	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUE

Entitlement to an extraschedular rating (evaluation) for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

Appellant (Veteran)

ATTORNEY FOR THE BOARD

C. Ferguson, Counsel

INTRODUCTION

The Veteran, who is the appellant, had active service from July 1962 to July 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2009 and August 2010 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case.

In January 2011, the Veteran presented testimony relevant to the appeal at a hearing held before a Decision Review Officer (DRO) at the RO in Houston, Texas.  In May 2012, the Veteran's representative presented argument on the Veteran's behalf at a Board hearing held before the undersigned Veterans Law Judge (VLJ) at a VA office in San Antonio, Texas.  The Veteran was not present for the Board hearing.  Transcripts of the hearings are of record.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. � 3.103(c)(2) requires that the VA employee who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and
(2) the duty to suggest the submission of evidence that may have been overlooked.

At the DRO hearing, the issue on appeal was noted to involve the evaluation of the Veteran's bilateral hearing loss, which includes consideration of an extraschedular rating.  The Veteran provided hearing testimony regarding the severity of his hearing loss disability and its effect on his former employment as an owner of an insurance business.  During the course of the hearing, the Veteran stated that he was scheduled to undergo audiological testing in the near future.  The DRO informed the Veteran that he would wait for the results of the hearing evaluation and consider those records when making a determination.  There was no indication that there was any other evidence that may have been overlooked or was missing from the record in connection with the appeal at that time.

At the Board hearing, the undersigned VLJ identified the issue on appeal as entitlement to an initial disability rating higher than 10 percent disabling for service-connected bilateral hearing loss, which includes consideration of a higher rating on an extraschedular basis.  The undersigned VLJ asked questions to help direct the Veteran's representative to more adequately portray the functional impairment associated with the Veteran's hearing loss disability.  The undersigned VLJ also held the record open for thirty (30) days following the Board hearing in response to the representative's request to allow the additional opportunity to obtain an updated audiogram test; however, no additional evidence was received during the 30-day period.  The possibility of, and requirements for, referral for consideration of an extraschedular rating were also discussed.

The issue on appeal (i.e., entitlement to an extraschedular rating) was sufficiently identified at both hearings, and the Veteran provided testimony relevant to the initial rating appeal.  The DRO specifically obtained updated VA treatment records after considering the Veteran's hearing testimony and considered the records when deciding the claim.  At the time of the Board hearing, the undersigned specifically suggested the submission of additional evidence such as recent audiometric testing evidence, and remanded the claim for extraschedular consideration.  In consideration of the foregoing, the Board finds that the DRO, as well as the undersigned VLJ, complied with the requirements of 38 C.F.R. � 3.103(c)(2).

In an October 2012 Board decision, the undersigned VLJ denied an initial rating in excess of 10 percent for bilateral hearing loss on a schedular basis and, as noted above, remanded the issue for extraschedular consideration pursuant to 38 C.F.R. � 3.321(b) after considering the representative's request for such consideration at the Board hearing due to the Veteran's difficulty conversing on telephones and the decision to sell his business and retire early due to hearing loss.  As explained below, a negative determination was received from the Chief of the Compensation Service on the extraschedular issue.

FINDINGS OF FACT

1.  The schedular criteria are inadequate to rate the additional occupational impairment caused by the Veteran's hearing loss disability because the schedular criteria does not consider the significant effects of hearing loss on the Veteran's former occupation as the owner and manager of an insurance agency, the limited speech amplification with hearing aid usage in a sedentary work environment, or the Veteran's inability to hear speech with the better left ear that is missed by the poorer right ear from the direction of the right side.

2.  The Veteran's hearing loss disability caused marked interference with his former employment as an owner and manager of an insurance agency beyond that contemplated by the schedular rating criteria that is consistent with the degree of impairment contemplated by a 20 percent extraschedular disability rating.

CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for a 20 percent extraschedular rating for bilateral hearing loss have been approximated for the entire rating period.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. �� 3.321(b) (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R.
� 3.159(b).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R.
� 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or supplemental statement of the case (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In this case, the Veteran is challenging the initial disability rating assigned following the grant of service connection for bilateral hearing loss in the February 2009 rating decision and the August 2010 DRO decision.  The Court has held that, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-91; Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007).  Furthermore, under 38 C.F.R. � 3.159(b)(3)(i), there was no duty to provide the Veteran with VCAA notice upon receipt of a Notice of Disagreement, such as in this case.  For these reasons, the Board finds that no further notice, beyond that afforded in the context of the claim for service connection, is needed under the VCAA.

Nonetheless, in the December 2008 VCAA notice letter sent in connection with the original service-connection claim, the RO advised the Veteran how VA determines the disability rating once service connection has been established.  In particular regard to the extraschedular component, the Veteran was advised that, in rare cases, a disability level other than the levels found in the schedule for a specific condition could be assigned if the impairment was not adequately covered by the rating schedule.  The Veteran was also advised that VA considered evidence pertaining to the nature and symptoms of the disability, the severity and duration of the symptoms, and the impact of the disability and symptoms on employment in assigning the disability rating.  The Veteran was requested to submit information about on-going treatment, Social Security determinations, and statements from employers as to job performance, lost time, and other information regarding how the disability affects the ability to work.

The Veteran and the representative have been provided with a copy of the above rating decisions, the SOC, and SSOCs, which cumulatively included a discussion of the facts of the issue of entitlement to an extraschedular rating, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision.  The Veteran through the representative has demonstrated actual knowledge of the evidence necessary to substantiate the claim for a higher initial rating on an extraschedular basis.  See May 2012 Travel Board hearing transcript, pages 3-5; see Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that the appellant and his representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim).  The Veteran has been provided with ample opportunity to submit evidence and argument in support of the claim and to participate effectively in the processing of the claim during the course of this appeal.  In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed.

Regarding VA's duty to assist in claims development, the RO afforded the Veteran with medical examinations in connection with the initial rating claim in January 2009 and August 2010.  The medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the Veteran's hearing loss.  The medical examiners took a thorough history of the hearing loss disability from the Veteran, including history of onset, diagnosis, report of symptomatology, other limitations, and treatment.  An adequate description of the functional effects of the Veteran's hearing loss was noted.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The medical examiners had adequate facts and data regarding the history and condition of the disability.  See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson,
19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran).  There has not been a material change in the condition of the Veteran's hearing loss disability since the most recent examination.  For these reasons, the Board finds that the medical examination reports are adequate for rating purposes, and there is no need for further medical examination.

Also, treatment records adequately identified as relevant to the appeal have been obtained, or otherwise submitted, and are associated with the record.  There are no additional treatment records pertinent to the Veteran's appeal found in the Virtual VA folder.  The Veteran has offered testimony before the DRO and the representative has provided additional argument before the Board regarding the severity of the Veteran's hearing loss disability.

In the October 2012 decision, the Board denied an initial rating in excess of 10 percent for bilateral hearing loss on a schedular basis.  The Board also remanded the issue of entitlement to an extraschedular rating for bilateral hearing loss for referral to the VA Undersecretary for Benefits or the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. � 3.321(b), for consideration of whether an extraschedular evaluation for service-connected bilateral hearing loss is warranted.  Such bifurcation of a claim generally is within the VA Secretary's discretion and, in this case, involved the bifurcation of a schedular rating for hearing loss and an extraschedular rating for hearing loss.  Tyrues v. Shinseki,
23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately); see also Locklear v. Shinseki, 24 Vet. App. 311 (2011) (holding that bifurcation of a claim generally is within VA's discretion).  The Veteran has not been prejudiced by the Board's adjudication of the initial rating appeal as two issues (i.e., a schedular rating for hearing loss and an extraschedular rating for hearing loss) because any final decision of the Board is appealable to the Court.  Tyrues, 23 Vet. App. at 178 (overruling Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) to the extent that "the Court retains its discretion to determine at the threshold that a claim or theory denied by the Board in any such decision or portion of a decision on review is so inextricably intertwined with matters still pending before VA that it should be remanded to VA to await development or disposition of a claim or theory not yet finally decided by VA").

Pursuant to the Board's October 2012 Remand order, the Appeals Management Center (AMC) referred the issue of entitlement to an extraschedular rating for hearing loss to the Chief of the Compensation Service in accordance with 38 C.F.R. � 3.321(b).  The February 2013 determination is of record.  After consideration of the Chief of the Compensation Service determination, the AMC denied the appeal for an extraschedular rating in a February 2013 SSOC.  Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein.  The Board further finds that there has been compliance with the prior remand order.  Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008).  In view of the foregoing, the Board will proceed with appellate review.

It is the Board's responsibility to evaluate the entire record on appeal.  See
38 U.S.C.A. � 7104(a) (West 2002).  The Board has thoroughly reviewed all the evidence in this case.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran).  In a claim for a higher original rating after an initial award of service connection, all the evidence submitted in support of a veteran's claim is to be considered.  In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. � 4.2 (2012).

Extraschedular Rating for Hearing Loss

The Court has set forth a three-step analysis for analyzing extraschedular rating issues.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  The threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Thun,
22 Vet. App. at 115.  Therefore, initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and 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, the assigned schedular evaluation is adequate, and no referral is required.

In the second step, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by 38 C.F.R. � 3.321(b)(1) (i.e., marked interference with employment and frequent periods of hospitalization).  Id. at 116.

When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred for a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.  In this case, the referral to the Chief of Compensation Service was accomplished in the Board's October 2012 remand.  The Chief of Compensation Service considered an extraschedular rating.  The issue of extraschedular rating for hearing loss has been adjudicated, and the case has been returned to the Board for appellate adjudication of the extraschedular rating issue.

Extraschedular Rating Analysis for Bilateral Hearing Loss

In October 2012, the Board determined that this case suggested an exceptional or unusual disability picture with interference with employment that may render impractical the application of regular schedular standards.  The Board remanded the issue on appeal for extraschedular consideration under 38 C.F.R. � 3.321(b)(1).

In a February 2013 determination, the Chief of the Compensation Service considered the evidence in the claims file and concluded that there was no unusual or exceptional disability picture shown so as to render the application of the regular schedular rating standards impractical.  The Chief of the Compensation Service found that the Veteran's current employment picture showed that he was currently retired and that he had decided to sell his business because of age and hearing difficulties.  The Chief then found that the medical evidence of record did not demonstrate that the limitation caused by the Veteran's service-connected hearing loss disability applied to physical job requirements or ruled out the ability to work in a sedentary environment with the use of hearing aids.

After considering the February 2013 determination, the AMC denied the Veteran's appeal for an extraschedular rating; therefore, the question of whether the Veteran's hearing loss disability is entitled to a higher initial rating on an extraschedular basis has first been adjudicated by the Chief of the Compensation Service, and the Board may now proceed to evaluate the merits of the appeal.  See Anderson v. Shinseki,
22 Vet. App. 423, 427-28 (2009) (the Board has jurisdiction to review determinations of the Director regarding a veteran's entitlement to an extraschedular rating).

Regarding the first step of the extraschedular analysis, the Board finds that the evidence is in equipoise on the question of whether the schedular criteria are adequate to rate the Veteran's hearing loss disability.  In evaluating the Veteran's initial rating appeal on an extraschedular basis, the Board has considered the symptoms and functional impairment pertaining to the Veteran's bilateral hearing loss disability as shown by the lay and medical evidence of record.

There is evidence in favor of finding that the schedular criteria for hearing loss reasonably describe the disability level and symptomatology associated with the Veteran's hearing loss disability.  At the DRO hearing, the Veteran complained that he had difficulty hearing when conversing with others on the telephone and on speakerphone.  See January 2011 DRO hearing transcript, page 3.  Speech discrimination is defined as the ability to recognize spoken words, as measured by speech audiometry.  See Dorland's Illustrated Medical Dictionary 527 (30th ed. 2003).  The schedular criteria for evaluating a hearing impairment require consideration of speech discrimination, in addition to audiometric data.  38 C.F.R. �� 4.85 (2012).  The Veteran's speech discrimination scores as demonstrated at the January 2009 and the August 2010 VA audiological examinations were specifically considered in the assignment of the current 10 percent schedular evaluation (rating).  Thus, some of the hearing loss symptomatology reported at the Board hearing is contemplated in the currently assigned 10 percent schedular rating.

Additionally, the representative stated at the Board hearing that the Veteran had received new hearing aids in February 2011 and had reportedly had some improvement with the adjustment.  See May 2012 Board hearing transcript, page 3.  This is consistent with the February 2011 VA audiological note included in the record, which shows that the Veteran reported improved speech intelligibility and sound quality with new hearing aids at that time.  This evidence indicates that the Veteran's ability to hear speech has been improved with amplification through the use and adjustment of new hearing aids since the February 2011 VA medical examination.

Nevertheless, there is evidence weighing against finding that the schedular criteria are adequate to rate the Veteran's hearing loss disability.  At the DRO hearing, the Veteran testified that the hearing loss disability had prevented him from conversing accurately with clients on the telephone and by speakerphone about financial matters and insurance protection.  As the Veteran worked in a sedentary environment and frequently communicated with others by telephone, and the Veteran's hearing testimony regarding how the hearing loss disability impacted his ability to conduct the business of the insurance agency is credible, the Board finds that the hearing difficulties at work resulted in a unique work impairment under the facts presented in this case beyond what is contemplated in the schedular criteria.  Indeed, at the DRO hearing, the Veteran testified that he often had to guess the words spoken by others during conversations and ultimately decided to sell the insurance business and retire early because guessing was not good enough when dealing with financial matters affecting the lives of his clients.  See January 2011 DRO hearing transcript, page 3.

The Veteran also testified that the use of hearing aids did not greatly improve his ability to hear.  The Veteran's testimony is generally supported by the February 2011 VA audiology note, which shows that the treating VA audiologist advised the Veteran of the "realistic expectations" for hearing amplification in light of the limitations imposed by his hearing loss when being fitted for hearing aids.  Thus, despite the evidence showing some improved hearing amplification with use of hearing aids, the Board resolves reasonable doubt in the Veteran's favor in finding that the use of hearing aids did not significantly improve the Veteran's ability to hear speech while conducting business in a sedentary environment.

The Board also notes that the Veteran has severe right-sided hearing loss.  The hearing loss demonstrated by the Veteran is unique in that some hearing loss is apparently not recognized by the schedular criteria.  as indicated in the separate Board decision addressing the schedular rating for the Veteran's bilateral hearing loss, the audiological findings in this Veteran's case reflect a level IX in the right ear and level II in the left ear, which results in only a 10 percent schedular rating for hearing loss in both ears, despite the much higher severity of hearing loss in the right ear.

The schedular criteria determination using the schedular rating percentages of Table VII at 38 C.F.R. � 4.85 incorporates the implicit concept that the better ear can always hear conversation even when the worse ear is unable to hear, an assumption that is not supported in this particular Veteran's case.  For example, Table VII assigns only a 0 percent rating for level IX hearing in the worse ear with a level I hearing in the better ear, which reflects that a veteran can have very significant hearing loss to level IX in one ear and not receive any schedular compensation for that hearing loss.  Another example is that Table VII assigns only a 10 percent rating for total deafness (level XI) in the worse ear with either a level I or level II hearing in the better ear, rather than assignment of a 50 percent rating that recognizes the total deafness in one ear.  The schedular rating criteria's implicit assumption that better ear is hearing much of what the poorer ear is missing does not account for limitations in sound travel based on direction, that is, the schedular rating criteria do not include the concept that hearing ability may be impaired based on sound direction to arrive to the side of the better ear; therefore, such directional impairment would of an extraschedular nature.

In this Veteran's case, there is evidence that shows that the (better) left ear is not fully compensating for the loss of hearing in the (worse) right ear.  At the Board hearing, the representative stated that the Veteran is unable to understand most of the words during conversation.  See May 2012 Travel Board hearing transcript, page 4.  The Board finds that the Veteran's account is credible; therefore, the Veteran is likely unable to hear speech in the left ear when it is from the direction of the right side.  The schedular criteria do not consider the Veteran's inability to hear with the better left ear, in addition to the inability to hear with the poorer ear, when speech is coming from the right side.  This evidence weighs against finding that the schedular criteria adequately rate the Veteran's hearing impairment.

Thus, on the one hand, the schedular criteria include speech discrimination scores, which is some recognition of inability to discern speech or words in conversation.  The Veteran is also shown to have improved hearing ability when using hearing aids.  On the other hand, the Veteran has presented competent and credible evidence showing that hearing amplification with hearing aids is limited and did not significantly improve the Veteran's hearing so that he is able to converse accurately with others in a sedentary work environment, which presents a unique work impairment not contemplated by the schedular criteria.  The schedular criteria also do not consider the Veteran's inability to hear speech missed by the better left ear.

The evidence shows that the Veteran demonstrates significant hearing loss and very low speech recognition scores, particularly in the right ear.  The January 2009 VA audiometric results for the right ear reflect an exceptional pattern of hearing impairment under 38 C.F.R. � 4.86(a).  The August 2010 VA audiometric results nearly reflect an exceptional pattern of right ear hearing impairment.  The Veteran also demonstrated speech recognition scores for the right ear of 48 percent at the January 2009 VA audiological examination and 40 percent at the August 2010 VA audiological examination, which were significantly lower than the speech recognition score for the left ear at both examinations, and shows significant disparity between the left and right ears.  This evidence weighs in favor of finding an exceptional disability picture for hearing loss.  For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the schedular criteria are not adequate to rate the additional impairment associated with the hearing loss disability.

The Board next finds that the evidence is at least in equipoise on the question of whether the Veteran's hearing loss disability caused marked interference with his former employment as an owner and manager of an insurance agency beyond that contemplated by the schedular rating criteria.  The August 2010 VA audiological examination report reveals that the VA examining audiologist diagnosed moderately severe sensorineural hearing loss in the right ear and mild to moderately severe sensorineural hearing loss in the left ear and opined that the Veteran's hearing disability had "significant effects" on his occupation.  When asked to specify the impact of the Veteran's hearing disability on occupational activities and daily activities, the VA examining audiologist noted that the Veteran had hearing difficulty during occupational activities and likely had difficulty hearing and understanding others during daily activities.  The VA examining audiologist based the opinion on review of the claims file and interview of the Veteran, as well as the audiometric findings shown on examination, and there is no competent medical opinion to the contrary of record.  Thus, the August 2010 VA audiological opinion supports the finding that the Veteran's hearing disability interfered with the ability to hear others during the occupational activities of employment.

The Veteran also has a history spanning several decades of wearing hearing aids.  At the January 2011 DRO hearing, the Veteran testified that he first started wearing hearing aids "a little over 40 years ago."  The Veteran similarly told the January 2009 VA examining audiologist that he had used hearing aids for the past 40 years.  Thus, by the Veteran's own account, he began wearing hearing aids approximately at the age of 29.  There is no indication in the record that the Veteran's reported history of hearing aid use is not credible.  This evidence supports finding that, despite the use of hearing aids, the Veteran was unable to continue to perform all the functions required by his job.

The Veteran has further provided hearing testimony regarding the negative effect that the hearing loss disability had on his former occupation in connection with the appeal.  At the January 2011 DRO hearing, the Veteran testified that his hearing loss deteriorated to the point that he could no longer accurately converse with people on the telephone or on a speakerphone.  He stated that he had difficulty understanding a lot of words and questions and had to have them repeated.  He further stated that, although he had "become pretty good at guessing" the words of others, he decided to sell his insurance business about five years earlier than planned due to difficulty understanding and discriminating a lot of conversation in background noise even when using hearing aids.  See January 2011 DRO hearing transcript, page 3.

At the Board hearing before the undersigned, the Veteran's representative reiterated that the Veteran was unable to continue with his insurance business and decided to sell the business about five years earlier than planned due to the extreme difficulty conversing on telephones and with other people as a result of his hearing loss.  The representative also referenced the Veteran's low speech recognition score in the right ear and explained that the Veteran reported that he had difficulty understanding a lot of words and questions and had to have them repeated.  See May 2012 Travel Board hearing transcript, pages 3-4.  The Veteran is competent to provide an account of how the service-connected hearing loss has impacted his employment, and the Board finds the account to be credible; thus, the Veteran's hearing testimony provides further support of marked interference with employment due to service-connected hearing loss.

The competent and credible evidence of record shows that the Veteran's bilateral hearing impairment made it difficult for him to manage his insurance business and influenced his decision to sell the business and retire early, although he has demonstrated an ability to "guess words" and improve the ability to hear speech through the use of hearing aids.  The August 2010 VA examining audiologist opined that the Veteran's difficulty hearing had a significant impact on his occupation, and the Veteran demonstrates significant hearing loss and low speech recognition scores in the right ear.  The schedular criteria assume that the better ear can hear what the poorer ear is unable to hear; however, this may not be true for speech from the direction of the right side.  The Veteran also has a history of hearing aid usage spanning over four decades.  Although the Veteran has not indicated that he was unable to obtain the information necessary to conduct his insurance business in written form when he was not otherwise able to guess the correct words being used in conversations and when the use of hearing aids was not sufficient for improving the ability to hear speech.  Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's hearing loss disability has resulted in marked interference with employment.

The Board further finds that, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating of 20 percent, but no greater than 20 percent, for bilateral hearing loss, for the entire period of the initial rating appeal.  In assigning the extraschedular rating of 20 percent in this case, the Board notes and has applied VA's general rating principles that urge recognition of the actual additional impairment caused by a service-connected disability.  See
38 C.F.R. � 4.21 (2012) (rating regulations do not require that all cases show all findings specified by the Rating Schedule, but is important to show the disability and to coordinate rating with impairment of function).  In this particular case, while the evidence supports a finding of marked interference with this Veteran's sedentary employment, the interference in this case is limited to some degree of inability to perform specific conversations and interactions in an office (sedentary) environment, rather than such inability in other environments where such abilities are less impairing.  Additionally, the evidence shows that the additional impairment caused the Veteran to relinquish only specific functions of his sedentary position limited to dealing with insurance clients.  The evidence does not include quantifiable monetary loss or even generally measurable job position or status changes to show more interference with employment than would be recognized by a 20 percent extraschedular rating.

The Board notes that all of the Veteran's schedular hearing loss disability warrants only a 10 percent schedular rating; the assignment of an extraschedular disability rating is assigned to recognize the impairment in addition to the schedular rating.  The Board notes also that the schedular disability rating of 10 percent in this Veteran's case (based on Maryland CNC speech recognition scores) includes some recognition of loss of speech recognition that cannot also serve as the basis for an extraschedular rating without violating the rule against pyramiding at 38 C.F.R. � 4.14 (2012); therefore, the amount of limitation of speech recognition ability that can be recognized as purely extraschedular, that is, that impacted this Veteran's ability to responsible work with insurance clients, is limited to that unique impairment in his specific occupation and specific employment experience.

Resolving reasonable doubt in the Veteran's favor, the criteria for a 20 percent extraschedular rating for bilateral hearing loss, but no higher, have been approximated for the entire rating period.  38 U.S.C.A. � 1155; 38 C.F.R.
� 3.321(b).  The 20 percent extraschedular rating under 38 C.F.R. � 3.321(b) is to be assigned in addition to, and separately rated apart from, any schedular rating percentage assigned for hearing loss under 38 C.F.R. � 4.85.

The Board has considered evidence of marked interference with employment in awarding an extraschedular evaluation under 38 C.F.R. � 3.321(b), as discussed above; however, to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) of hearing loss and tinnitus is not raised by the Veteran or the evidence of record.  A TDIU, while a form of extraschedular rating, involves different factual questions than the extraschedular rating issue decided in this Board decision.  See 38 C.F.R. � 4.16 (2012) (inability to obtain or maintain substantially gainful employment due to all service-connected disabilities).  In the present appeal, the Board finds that the issue of TDIU has not been reasonably raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); 38 C.F.R. � 4.16.  The Veteran has testified that he voluntarily chose to retire early due to hearing difficulties, and did not testify or assert that he lost employment due to the service-connected hearing loss disability or is unable to find employment due to hearing loss.  He has not alleged and is not otherwise shown to be unable to secure or follow substantially gainful employment due to service-connected disabilities.

ORDER

An extraschedular evaluation of 20 percent for bilateral hearing loss is granted.

____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: K MILLIKAN

disposition: denied

condition: psychiatric

text:
Citation Nr: 1319000
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  06-36 706	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1. Entitlement to service connection for hypertension, to include as secondary to a service-connected psychiatric disability and/or due to Agent Orange exposure.

2. Entitlement to service connection for a lumbar spine disorder as secondary to service-connected bilateral feet and ankle disorders.

3. Entitlement to service connection for a right knee disorder as secondary to service-connected bilateral feet and ankle disorders.

4. Entitlement to service connection for a left knee disorder as secondary to service-connected bilateral feet and ankle disorders.

5. Entitlement to service connection for a cervical spine disorder as secondary to service-connected bilateral feet and ankle disorders.

6. Entitlement to service connection for post-phlebitic syndrome, right lower extremity, as secondary to service-connected bilateral feet and ankle disorders.

7. Entitlement to service connection for post-phlebitic syndrome, left lower extremity, as secondary to service-connected bilateral feet and ankle disorders.

8. Entitlement to service connection for sleep apnea, to include as due to Agent Orange exposure.

REPRESENTATION

Veteran represented by:	Texas Veterans Commission

WITNESSES AT HEARING ON APPEAL

Veteran and V.W.

ATTORNEY FOR THE BOARD

M. Mac, Counsel

INTRODUCTION

The Veteran served on active duty from August 1961 to June 1963 and from August 1963 to July 1966.  His DD 214 confirms that he served in the Republic of Vietnam during the Vietnam era.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2006, November 2008, and June 2009 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA).

In July 2010, the Veteran appeared at a hearing before the undersigned.  A transcript of the hearing is in the record.  A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal.

In April 2013, a waiver for RO review was received from the Veteran for additionally submitted evidence.

In April 2011 and in January 2013, the Board remanded the issues for further development.  As the requested development has not been completed, with the exception of the issues of service connection for hypertension and sleep apnea, further action to ensure compliance with the remand directive is required.  See Stegall v. West, 11 Vet. App. 268 (1998).  Therefore these issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDINGS OF FACT

1.  Hypertension did not manifest in service, within the one year presumptive period or for many years thereafter, and is not otherwise related to service, to include exposure to herbicide agents.

2.  Hypertension is not shown to have been caused or aggravated by the service-connected anxiety disorder.

3.  Sleep apnea did not manifest in service or for many years thereafter, and is not otherwise related to service, to include exposure to herbicide agents.

CONCLUSIONS OF LAW

1.  Hypertension was not incurred in or aggravated by military service, nor may it be presumed to have been incurred therein, nor may it be presumed to have been so incurred as due to herbicide exposure.  38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.303, 3.307, 3.309 (2012).

2.  Hypertension is not proximately due to or aggravated by a service-connected disability.  38 U.S.C.A. �� 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.303, 3.310 (2012).

3.  Sleep apnea was not incurred in or aggravated by military service, nor may it be presumed to have been so incurred as due to herbicide exposure.  38 U.S.C.A. �� 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.303, 3.307, 3.309 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The RO provided pre-adjudication VCAA notice by letters dated in April 2005, March 2006, and in August 2008.  The Veteran was notified of the evidence needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim.  In January 2013, the Veteran was provided a post-adjudication VCAA notice letter that notified him of the evidence needed to substantiate service connection on a secondary basis.  The timing of the notice did not comply with the requirement that the notice must precede the adjudication, but this procedural defect was cured because the letter provided the required substance and the issue was readjudicated in an April 2013 supplemental statement of the case.  See Prickett, 20 Vet. App. at 376.

VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims.  Service treatment records (STRs), available post-service treatment records, lay statements, and hearing transcripts have been associated with the record.  A review of the file indicates that some VA records are not associated with the claims file.  An April 2006 formal finding of unavailability of VA records from the Houston VA Medical Center from January 1, 1987 to December 31, 1993 noted the efforts made to obtain these records.  Additionally, notice provided to the Veteran in March 2006.  See 38 C.F.R. � 3.159(e).  In May 2006, the Veteran stated that he had a sleep study before 1987 at the VA Medical Center in Houston, Texas.  A letter in June 2006 requested more information concerning the sleep study prior to 1987, however the Veteran did not reply.  "[T]he duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Furthermore, there is an October 2008 formal finding of unavailability of records from the Central VA Health Care System for the period from January 1, 1983 to September 17, 1992; notice on this matter was provided to the Veteran that same month.

The Veteran was most recently afforded a VA examination for hypertension in August 2012 and a VA opinion was obtained in February 2013.  He was accorded a VA examination for sleep apnea in May 2011 and an accompanying VA opinion was rendered in March 2013.  The opinions are fully adequate to adjudicate the claims as they are based upon a review of the relevant information and contain supporting rationale.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Thus, with respect to the Veteran's claims, there is no additional evidence which needs to be obtained.

Legal Criteria for Service Connection

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service.  38 U.S.C.A. �� 1110, 1131.

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. � 3.303(a).

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hypertension, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. � 1112; 38 C.F.R. �� 3.307, 3.309.

For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. � 3.303(b).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. � 3.303(d).

Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 U.S.C.A. � 1110; 38 C.F.R.
� 3.310(a).  This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury.  Allen v. Brown,
7 Vet. App. 439 (1995) (en banc).

In making its determination, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. � 3.310(b).  Regarding sleep apnea, this provision is inapplicable as that claim was filed prior to October 10, 2006.  However, this provision is applicable to hypertension; the Veteran's claim for service connection for hypertension was filed after October 10, 2006.  See generally Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. � 5107(b).

Direct Service Connection Analysis

As the Veteran served in Vietnam, it is presumed that he was exposed to Agent Orange.  See 38 U.S.C.A. � 1116.  In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C.A. � 1116(a); 38 C.F.R. �� 3.307(a)(6), 3.309(e).  The current list of diseases subject to presumptive service connection does not include hypertension or sleep apnea.  38 C.F.R. �� 3.307(a)(6)(ii); 3.309(e).

Notwithstanding the foregoing, the Veteran may still establish service connection with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999).  "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner."  Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009).  A statistical correlation between Agent Orange and a disease not on the presumptive list may not be the only basis for a positive nexus opinion; it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered.  Polovick, 23 Vet. App. at 53-54.

Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that a categorical statement that a valid medical opinion was required to establish nexus, and that a layperson was not competent to provide testimony as to nexus as a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (providing that lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

In December 2007, the Veteran filed a claim of service connection for hypertension, secondary to Agent Orange exposure.  He contends that he was first diagnosed with hypertension five years earlier, in 2002, and it was related to Agent Orange exposure during his service in Vietnam.  As for sleep apnea, the Veteran contends that he has had sleep apnea since service.

For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm.  See 38 C.F.R. � 4.104, Diagnostic Code 7101, Note (1).

STRs show that the Veteran's blood pressure was essentially normal.  On induction examination in August 1961 it was 130/80, on separation examination in May 1963 it was 118/64, and in October 1963 it was 140/74, 136/80, and 132/84.  On separation examination in July 1966 it was 120/80.  On the accompanying report of medical history, the Veteran denied having high blood pressure.  STRs show the Veteran was treated for an upper respiratory infection in May 1963 and complained of hayfever on the report of medical history in May 1963, however his lungs, chest, nose and sinuses were normal on separation examination in May 1963 and in July 1963.  There is no documentation of sleep apnea or a sleep disorder.

VA hospital records in November 1981 show no history of hypertension and the Veteran's blood pressure was 124/80.  VA records show that hypertension was diagnosed in June 2002.

In April 2008 at a RO hearing, the Veteran testified that his sleep apnea began in 1962 or 1963 during service in Korea and his bunk mates complained about his snoring, however he was not treated for sleep apnea during service.  He stated that he was sent to a sleep lab approximately in the 1990s and was diagnosed with sleep apnea.  During the hearing the Veteran stated that he saw a doctor during service for his snoring problem and was given a nasal spray; the Board does not find this statement credible because it is inconsistent with his testimony that he was not treated for a sleep disorder during service.

During the Board hearing in July 2010, the Veteran again stated that he was not treated for sleep apnea during service and testified that he was diagnosed with the disorder in the 1990s at the VA Medical Center in Houston, Texas.  He asserted that he did not discuss with any doctor whether sleep apnea was related to his Agent Orange exposure in Vietnam.

VA medical records from 1994 to the present show sleep apnea.  A private polysomnography interpretation in June 2004 shows severe obstructive sleep apnea.

On VA examination in August 2012, the Veteran reported having hypertension and being treated for it during service in Vietnam.  He claimed that he has been taking blood pressure medication since service.  The examiner noted that there was no documentation in the Veteran's service treatment records that he had hypertension and he had only one elevated blood pressure reading of 140/74 in 1963.  His blood pressure was normal on separation examination.

In an opinion in February 2013, a VA examiner concluded that hypertension was less likely than not incurred in or caused by service.  She indicated that hypertension is not an Agent Orange presumptive disability and explained that in the majority of patients with hypertension there is no known cause however it is known that arterial walls with age tend to lose elasticity making the vessels more rigid and causing blood pressure to rise.  She noted that the Veteran was diagnosed with hypertension in 2002 when he was 67 years old, which is not an unusual age to be diagnosed with hypertension.  She explained that there was no causal relationship between hypertension and Agent Orange exposure.

In a March 2013 VA opinion, the examiner concluded that the Veteran continues to have sleep apnea which was less likely than not incurred in or caused by service.  The rationale was that the Veteran was diagnosed with sleep apnea in 1986 and had multiple studies done over the years.  However, sleep studies were not done in the military nor was a diagnosis of sleep apnea documented in the STRs.  She noted that the Veteran was never seen by a medical professional for insomnia or sleep problems during service.  As for a causal relationship between sleep apnea and Agent Orange exposure in Vietnam, the examiner explained that there is no proof that Agent Orange has any cause/effect relationship with sleep apnea.

As a lay person, the Veteran is competent to state that he has had symptoms of hypertension and sleep apnea and his statements that he has had these symptoms are credible.  To the extent that the Veteran has stated that he has had hypertension since service, his contention is not credible because it is inconsistent with his report of medical history upon discharge from service in July 1966, where he denied having high blood pressure, and his statement in December 2007 asserting that he was diagnosed with hypertension in 2002.

In this case, the onset and etiology of hypertension and sleep apnea are medical issues that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Thus, the Veteran is not competent to provide this type of testimony.  Additionally, the Veteran's assertions that his hypertension and sleep apnea are related to service, to include Agent Orange exposure in Vietnam, are outweighed by the VA opinions in February 2013 and March 2013, whereby the examiner concluded that hypertension and sleep apnea were less likely than not incurred in or caused by service, to include exposure to Agent Orange.  These opinions are highly probative as they reflected the VA examiner's knowledge, training, and experience as to the etiology of the Veteran's hypertension and sleep apnea.   The opinions were based on medical principles and applied to the facts of the case.  See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008).  The VA examiner, a staff physician, considered the nature of the Veteran's hypertension and sleep apnea, history and relevant longitudinal complaints in proffering the opinions.

Further, the VA opinions are consistent with the other evidence of record.  The blood pressure readings during service were essentially normal and inconsistent with a hypertensive disability.  See 38 C.F.R. � 4.104.  The lack of complaints, treatment, or diagnoses of hypertension or sleep problems until many years after service, supports the conclusion that hypertension and sleep apnea did not manifest in service.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (noting that the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue).  As the probative evidence does not indicate that hypertension was manifested within one year of service, or for many years thereafter, service connection on a presumptive basis is not available.  38 U.S.C.A. � 1112; 38 C.F.R. �� 3.307, 3.309.  For these reasons there also is no basis for a finding of continuity of symptomatology of hypertension since service under 38 C.F.R. � 3.303(b).

As sleep apnea is not included among the chronic diseases under 38 U.S.C.A.
� 1101 and 38 C.F.R. � 3.309(a), consideration of continuity of symptomatology under 38 C.F.R. � 3.303(b) with regards to sleep apnea is not applicable.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board thus finds that the claim for service connection for hypertension and sleep apnea, to include as due to Agent Orange exposure, is not warranted.  See 38 C.F.R. 3.303(d), 3.309(e); Combee, 34 F.3d at 1042.  In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Secondary Service Connection for Hypertension

In December 2009, the Veteran claimed that his hypertension was related to his posttraumatic stress disorder (PTSD).  In July 2010, the Veteran testified that a doctor told him that hypertension was related to his PTSD.  The Board notes that the Veteran is service-connected for a psychiatric disorder diagnosed as anxiety disorder and thus his claim for service connection for hypertension is also being considered as secondary to a service-connected psychiatric disorder.

In the addendum opinion in September 2012, a VA examiner stated that based on his clinical experience and judgment, he did not believe the Veteran's longstanding hypertension, which was under very adequate control, has been caused by his psychiatric disorder nor aggravated by it.

In an opinion in February 2013, another VA examiner concluded that hypertension was not caused or aggravated by the service-connected anxiety disorder because the Veteran's blood pressure varied frequently but the average was maintained.  The examiner noted that since 1998 (prior to the 2002 hypertension diagnosis) there has not been a significant change with constant elevation or aggravation related to anxiety.  The examiner further explained that the service-connected anxiety did not cause hypertension as anxiety is not a risk factor for the diagnosis of essential hypertension.

As for the Veteran's testimony that a doctor told him that hypertension was related to his PTSD, lay evidence is competent when reporting a contemporaneous diagnosis.  Jandreau v. Nicholson, 492 F3d. 1372, 1377 (2007).  However, in the instant case the Veteran has been granted service connection for anxiety disorder, he is not service connected for PTSD.  Therefore his testimony regarding the relationship between hypertension and PTSD does little to support his claim.

In addition, the Veteran's lay opinion is outweighed by the February 2013 VA examiner's opinion that hypertension was not caused or aggravated by the service-connected anxiety disorder because anxiety is not a risk factor for hypertension and average blood pressure readings have been maintained and not aggravated.  The VA examiner, a staff physician, considered the nature of the Veteran's hypertension, history and relevant longitudinal complaints in proffering her opinion.  Whether a psychiatric disorder would cause or aggravate high blood pressure is a complex medical issue that requires scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  See Layno, 6 Vet. App. at 469.  Thus, the medical opinion has greater weight.

In sum, the Board finds that the most probative evidence establishes that the Veteran's anxiety disorder does not cause or aggravate his hypertension.  Therefore, the preponderance of the evidence is against the claim for hypertension as secondary to a service connected disability.  Because there is no approximate balance of positive and negative evidence, the rule affording the Veteran the benefit of the doubt does not apply.  38 U.S.C.A. � 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. � 3.102.

ORDER

Service connection for hypertension, to include as due to Agent Orange exposure and secondary to a psychiatric disability, is denied.

Service connection for sleep apnea, to include as due to Agent Orange exposure, is denied.

REMAND

Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim.  Remand is required to obtain adequate etiological opinions.

Lumbar Spine, Right Knee, Left Knee, and Cervical Spine

A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).  Additionally, a medical opinion should address the appropriate theories of entitlement.  Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007).  Stefl, 21 Vet. App. at 123-24.  Further, a medical opinion's probative value is based in the rationale provided.  Nieves Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008).  Here, remand is required because the examinations did not fully comply with the prior Board remand.

On VA examination in May 2011, the examiner opined that it was less likely as not that degenerative joint disease of the knees, a lumbar spine disorder, or a cervical spine disorder was caused by or a result of service-connected bilateral feet and ankle conditions.

In January 2013, the Board remanded these issues for an examiner to opine whether it is at least as likely as not that the Veteran's lumbar spine, cervical spine, and bilateral knee disorder was either caused by or aggravated by his service-connected bilateral foot disorder, bilateral ankle disorder, or a combination of both the service-connected disorders and to comment on the conflicting opinions in the file.  Although opinions were obtained in March 2013, the examiner did not address whether the lumbar spine, cervical spine, and knees were aggravated by his service-connected bilateral foot disorder and bilateral ankle disorder nor provide comment on the conflicting medical opinions in the claims folder.

In a March 2013 opinion the examiner concluded that the conditions are less likely than not due to or the result of the Veteran's service-connected conditions.  As for the lumbar spine, the rationale was that the Veteran has 6 lumbar vertebrae which is a congenital condition and the most likely cause of problems in his low back.  As for the cervical spine, the examiner noted that a x-ray report in 2005 shows a normal spine however a x-ray in 2007 shows scoliosis and the examiner explained that muscle spasm is the usual cause of scoliosis rather than gait problems.  As for the knees, the examiner noted that there is x-ray evidence of arthritis and pseudogout and pseudogout is not related to any foot or ankle problem.   The examiner further explained that the Veteran intermittently walked with an antalgic gait and the antalgic gait would have to be constant in order for the spine and knees to be affected.  Thus the examiner must render addendum opinions to address aggravation.

Post-Phlebitic Syndrome of the Lower Extremities

On VA examination in May 2011, the examiner opined that the Veteran did not have post-phlebitic syndrome and that his bilateral lower extremity condition was less likely as not caused by or a result of his service-connected bilateral foot or ankle condition.  In January 2013, the Board noted that during the appeal period the Veteran in November 2005 had a diagnosis of post-phlebitic syndrome of both lower extremities.  The Board remanded the issues for an opinion as to whether the Veteran had post-phlebitic syndrome of the lower extremities at any time since he filed his claim in 2005 and whether it is at least as likely as not that the post-phlebitic syndrome of the lower extremities was either caused or aggravated by his service-connected bilateral foot disorder, bilateral ankle disorder, or a combination of both the service-connected disorders.  The examiner was asked to comment on the significance of the May 2008 private opinion from MSS noting that it was more likely than not that the post-phlebitic syndrome of the lower extremities was related to the service-connected bilateral foot disorder.

The examiner in March 2013 rendered an opinion that the condition is less likely than not proximately due to or the result of the Veteran's service-connected conditions based on the rationale that the Veteran developed phlebitis in his legs years after he was diagnosed with deep venous thrombosis (DVT) in his left leg in August 1995 and the foot and ankle problems are not risk factors for the development of DVT unless they result in immobility and or venous stasis.  The examiner noted the Veteran continues to take anticoagulant to prevent DVT.  As the examiner implicitly acknowledged, then, the Veteran had post-phlebitic syndrome in his lower extremities but did not address whether the post-phlebitis syndrome of the lower extremities was aggravated by the service-connected bilateral foot disorder and bilateral ankle disorder.  This must be remedied on remand.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  Expedited handling is requested.)

1. Return the claims file to the examiner who conducted the VA examination in May 2011 and rendered the opinion in March 2013 regarding the lumbar spine, cervical spine, and knee disorders.  If this examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner.  The claims file and a separate copy of this remand must be made available to and reviewed by the examiner.  The examiner is asked to provide a full explanation for the opinions rendered.  If the examiner is not able to provide an opinion, he or she should explain why.

The examiner must provide an opinion whether it is at least as likely as not (50 percent probability or more) that the Veteran's lumbar spine, cervical spine, and bilateral knee disorders are aggravated by his service-connected bilateral foot disorder, bilateral ankle disorder, or a combination of those service-connected disorders.  The examiner is asked to comment on whether some of the increase in severity is due to natural progress of the disease, and if so the examiner should identify the degree of increase in severity due to natural progression.

The examiner must comment on the following conflicting medical opinions of record: the November 2005 and July 2007 VA examination reports indicating that the bilateral lower extremity, cervical spine, and lumbar spine disorders were unrelated to the service-connected feet disorders; the March 2005 statement from LE noting that the lumbar spine, cervical spine, and bilateral lower extremity disorder were at least as likely as not related to the in-service feet problem that altered the Veteran's gait; the April 2005 statement from LE indicating that the Veteran's feet and ankle problems will continue to aggravate his lumbar spine condition; the September 2006 statement from KW noting that the damage to the Veteran's feet and ankles caused his back and leg problems due to an altered gait; the May 2008 statement from MSS noting that it was more likely than not that all the disabilities were related to the service-connected feet disorder; the February 2009 statement from LE noting that as a result of a previous ankle and foot injury, the Veteran's gait was altered and the altered gait resulted in low back pain.

2. Return the claims file to the examiner who conducted the VA examination in May 2011 and rendered the opinion in March 2013 regarding post-phlebitic syndrome of the lower extremities.  If this examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner.  The claims file and a separate copy of this remand must be made available to and reviewed by the examiner.  The examiner is asked to provide an explanation for the opinions rendered.  If the examiner is not able to provide an opinion, he or she should explain why.

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's post-phlebitic syndrome of the lower extremities was aggravated by his service-connected bilateral foot disorder, bilateral ankle disorder, or a combination of those service-connected disorders.  The examiner is asked to comment on whether some of the increase in severity is due to natural progress of the disease, and if so the examiner should identify the degree of increase in severity due to natural progression.

The examiner must comment on the significance of the May 2008 statement from MSS noting that it was more likely than not that the post-phlebitic syndrome of the lower extremities was related to the service-connected bilateral foot disorder.  The examiner is advised that in volume 2 of the claims folder, the May 2008 private opinion from MSS appears to be in response to the query posed on the previous page as to whether the post-phlebitic syndrome of the lower extremities was secondary to his service-connected bilateral metatarsalgia.

3. If the benefits sought on appeal remain denied, issue the Veteran and his representative a supplemental statement of the case before the claims file is returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or 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 Supp. 2012).

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K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs