judge_norm: JOHN J CROWLEY

disposition: denied

text: The appeal is denied.

text:
Citation Nr: 1216000
Decision Date: 05/03/12    Archive Date: 05/10/12

DOCKET NO.  07-06 481A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California

THE ISSUES

1.  Entitlement to service connection for hepatitis C.

2. Entitlement to service connection for cirrhosis of the liver.

REPRESENTATION

Appellant represented by:	Joseph R. Moore, Esq.

ATTORNEY FOR THE BOARD

E. D. Anderson, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1963 to May 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the Veteran's claims for service connection for hepatitis C, and cirrhosis of the liver, to include as due to exposure to Agent Orange.

An August 2009 Board decision denied the Veteran's claims, but in May 2011, the United States Court of Appeals for Veterans Claims (Court) remanded the matter so that the Board could clarify the reasons and bases for its decision.

Since the case has been returned to the Board, the Veteran has submitted additional evidence, but has waived RO review.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2011).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDING OF FACT

The Veteran's hepatitis C and cirrhosis of the liver are less likely than not related to the Veteran's active military service.

CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for hepatitis C have not been met.  38 U.S.C.A. �� 1101, 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.307, 3.309 (2011).

2.  The criteria for entitlement to service connection for cirrhosis of the liver have not been met.  38 U.S.C.A. �� 1101, 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2011).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Board has reviewed all of the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. ��  1110, 1131 (West 2002); 38 C.F.R. � 3.303(a) (2011).  In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Under 38 C.F.R. � 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. � 3.303(b).  "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).

Service connection may be granted for any disease 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) (2011).

Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder.  38 C.F.R. � 3.310.  Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected.  Allen v. Brown, 7 Vet. App. 439 (1995).  In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury.  38 C.F.R. � 3.310.

In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R.  � 3.322.

The Veteran contends that he has hepatitis C, and cirrhosis of the liver, as a result of his service.  He mainly argues that he has these disabilities as the result of being given blood transfusions for a motor vehicle accident (MVA) and/or treatment of his gunshot wound to the right upper extremity, during service in Vietnam.  He also argues that he has these disabilities as the result of exposure to Agent Orange.  See Veteran's letters, dated in June 2004 and October 2005.

The Veteran's representative has also argued that, even if the Veteran was not shown to have received a blood transfusion for treatment of his gunshot wound, the Veteran could have contracted hepatitis C through his open wounds, that a December 1965 report showing treatment for cold and flu-like symptoms could be evidence of hepatitis C symptoms, and that in March 1967, he was diagnosed with venereal disease, which is evidence of in-service high-risk activity.  See Veteran's representative's Informal Hearing Presentation, dated in June 2009.

Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades.  See VBA Letter 211B (98-110), November 30, 1998.

Population studies suggest hepatitis C can be sexually transmitted.  However, the chance for sexual transmission of [hepatitis C] is well below comparable rates for HIV/AIDS or hepatitis B infection. . . .  The hepatitis B virus is heartier and more readily transmitted than [hepatitis C].  While there is at least one case report of hepatitis B being transmitted by an airgun injection, thus far, there have been no case reports of hepatitis C being transmitted by an airgun transmission.  The source of infection is unknown in about 10 percent of acute hepatitis C cases and in 30 percent of chronic hepatitis C cases.  These infections may have come from blood-contaminated cuts or wounds, contaminated medical equipment or multi-dose vials of medications.

The large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use.  Despite the lack of any scientific evidence to document transmission of hepatitis C with airgun injectors, it is biologically plausible. . . .

VBA Fast Letter 04-13 (June 29, 2004).

The Veteran's discharge (DD Form 214) shows that his awards include the Purple Heart and the Vietnam Service Medal.

In a hepatitis risk factor questionnaire, received in June 2004, the Veteran denied ever using intravenous drugs, or intranasal cocaine, or participating in high-risk sexual activity, providing highly probative factual evidence against this own claim, undermining his own case critically.

In this questionnaire, he stated that he got a tattoo in 1963, prior to active duty.  He further stated that he got a tattoo in 1983, after active duty, that he was the first customer for the tattoo artist, and that he bought the tattoo artist a new set-up (needle head and ink) for his tattoo.  He also reported that he had received a blood transfusion in 1964 (in association with treatment for his motor vehicle accident), and in 1966 (in association with treatment for his gunshot wound).

The Veteran's service medical records include an entrance examination report, dated in March 1963, which notes that he had a tattoo URA (upper right arm).

Importantly, these reports, which are detailed, also show treatment for a concussion and a laceration over the left eyebrow following an MVA in April 1964.  It appears that the Veteran's laceration was sutured at a civilian hospital and x-rays of the Veteran's chest and skull were taken, which were negative for any injury.  The Veteran was then transferred to a US naval hospital where he recovered rapidly.

This report clearly provides factual evidence against the claim that he ever had a blood transfusion as a result of this MVA.  The report clearly notes the nature of the problem, what was done, and the results in such a way as to make clear to even lay observation that a blood transfusion was not needed, or used, at this time.  In light of the Veteran's injuries, as clearly reported, no blood transfusion was used, undermining the Veteran's credibility with the Board that he ever received a blood transfusion in service, as well as his overall creditability.

Simply stated, while the Board does not doubt the current sincerity of the Veteran's beliefs that this disability is related to service, the Veteran is not a credible historian of his disability, undermining his claim.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.

A June 1964 report shows that the Veteran was hospitalized for psychiatric symptoms.  The report notes that he had been "under surveillance for narcotics usage," and that, "[t]here was a feeling that the patient possibly had been using drugs and that his brief psychotic episode represented not so much brain trauma as the effects of a drug overdose or possibly a drug withdrawal during the period of time he was aboard the [U.S.S.] Haven."  However, post-concussive syndrome or acute paranoid schizophrenic reaction were also considered.

The report indicates that the Veteran denied using narcotics.

In November 1965, he was treated for a through-and-through gunshot wound to the right arm at the level of the mid-humerus.  It was noted that he received an initial debridement and drain insertion in the field.  X-rays of the right humerus were negative.

Reports, dated in December 1965, show treatment for a fever and a sore throat with a productive URI (upper respiratory infection).

The Veteran's separation examination report, dated in April 1967, shows that his abdomen and viscera were clinically evaluated as normal.  In an associated "report of medical history," he denied a history of "stomach, liver or intestinal trouble."  This report notes one episode of gonorrhea in service, treated with penicillin.

None of the treatment reports indicate that he was given a blood transfusion.  In addition, the service treatment records do not show treatment for, or a diagnosis of, hepatitis, or cirrhosis of the liver, providing evidence against the claims.

The post-service medical evidence consists of VA and non-VA reports, dated between 1993 and 2009.  This evidence shows that the Veteran was diagnosed with hepatitis C, and cirrhosis of the liver, no earlier than 2003.  These reports note a history of heavy alcohol use, drug abuse, use of marijuana, speed, and "pills," and four DUI (driving under the influence) arrests following service.  See Kaiser Permanente records, dated in November 2003 and January 2006; July 2006 QTC examination report.

An August 2007 VA progress note shows that the Veteran gave a history of use of alcohol, marijuana, amphetamines, PCP, LSD, and methamphetamines, and that he denied having used cocaine, intravenous drugs, and heroin.  He also indicated a legal history "under drug influence."

A VA examination report, dated in December 2008, shows that the examiner stated that he had reviewed the Veteran's C-file.  The report shows that the Veteran reported that he was diagnosed with hepatitis C in 1994 when he tried to donate blood.  He asserted that he received a blood transfusion in Vietnam, in association with his treatment for his gunshot wound, and he denied occupational blood exposure, use of intravenous drugs, or cocaine use.  He reported a history of drug use and heavy alcohol use in the past, but not for the last 30 years.  The diagnosis was hepatitis C with cirrhosis.

The examiner stated: "I have no evidence that the Veteran's hepatitis C and/or cirrhosis is related to his period of active service; it would be mere speculation if I were to state that it is as least as likely as not."  The examiner further stated that the Veteran's service records make no mention of a transfusion in association with treatment for his gunshot wound, nor did they show severe bleeding, or circulatory compromise, and that they showed that his CBC (complete blood count) was normal, providing factual evidence against the claim that any blood transfusion was used during service.

In March 2012, the Veteran submitted a private medical opinion from Dr. P.C. of St. Joseph's Medical Center in Brainerd, Minnesota.  He opined that the Veteran's hepatitis C was at least as likely as not due to a blood transfusion in service.  He appeared to base this conclusion largely on his belief that the Veteran's assertions that he had a transfusion in service and had never used intravenous drugs were truthful.  There is no other basis indicated.  Therefore, if the Board finds the Veteran did not have a blood transfusion in service, as it has, the foundation of the opinion becomes meaningless.

Blood Transfusions

The Veteran's primary contention on appeal is that his hepatitis C infection was due to blood transfusions received in service, including an alleged transfusion following his gunshot wound to the right arm in November 1965 and an alleged transfusion following a MVA in April 1964.

In the case of a veteran who engaged in combat with the enemy (as this Veteran did) in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.  See 38 U.S.C.A. � 1154(b) (West 2002).

However, pertinent case law also provides that 38 U.S.C.A. � 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability, and that the veteran is required to meet his evidentiary burden as to service connection such as whether there is a current disability or whether there is a nexus to service which both require competent medical evidence.  See Collette v. Brown, 82 F.3d 389, 392 (1996).

In Collette, the United States Court of Appeals for the Federal Circuit (Federal Circuit) articulated a three-step sequential analysis to be performed when a combat veteran seeks benefits under the method of proof provided by 38 U.S.C.A. � 1154(b).  Id. at 392-93.  Initially, VA must determine whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease."  If a veteran produces credible evidence that would allow a reasonable fact-finder to conclude that the alleged injury or disease was incurred in service, then the veteran has produced "satisfactory evidence" to satisfy the first step under the statute.  This determination requires the credibility of the veteran's evidence to be judged standing alone and not weighed against contrary evidence.

In Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), the Court found that, in determining whether documents submitted by a veteran constitute "satisfactory" evidence under 38 U.S.C.A. � 1154(b), VA may properly consider "internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran."

VA must then determine if the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service," again without weighing the veteran's evidence with contrary evidence.  Collette, 82 F.3d at 392-93.  If these two inquiries are met, VA "shall accept" the veteran's evidence as sufficient proof of service connection, even if no official record of such incurrence exists.  At this point, a factual presumption arises that the alleged injury or disease is service-connected.  Id.

The Veteran alleges that while serving in Vietnam when he was shot in the right arm and bled profusely.  He reports being transfused by a field medic or flight surgeon, although there is no documentation of this in his service treatment records.  His lay statements are sufficient to establish the occurrence of the event he describes.

His statements are also are consistent with the facts and circumstances of his service in Vietnam, as his gunshot wound is documented and the Veteran has presented evidence that in Vietnam, whole blood was used in treating wounded service members, sometimes even before the arrival of an air ambulance.  See print out from the U.S. Army Medical Department Office of Medical History entitled Care of the Wounded.  Thus, having applied the first two steps under Collette, a factual presumption arises that the alleged injury is service connected.

Under the third Collette step, however, VA is to weigh evidence contrary to that which established the presumption of service connection.  If VA meets its burden of presenting clear and convincing evidence to the contrary, the presumption of service connection is then rebutted.  Collette, 82 F.3d at 393.

In this case, the Board finds that the presumption has been rebutted by clear and convincing evidence.

The service treatment records do not show treatment for, or a diagnosis of, hepatitis, or cirrhosis of the liver.  As for the post-service medical evidence, it shows that the earliest evidence of hepatitis C, or cirrhosis of the liver, is dated in 2003.  The December 2008 VA examination report is considered to be highly probative evidence which shows that the Veteran does not have hepatitis C, or cirrhosis of the liver, that was caused by his service.  The examining physician indicated that he had examined the Veteran, and reviewed his claims file.  See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.).  His opinion shows that he determined that there was "no evidence" to support either of the claims, and when read in context, it clearly weighs against the claims.  Lee v. Brown, 10 Vet. App. 336 (1997) (an etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words).  The examiner noted that the service treatment reports did not mention a blood transfusion, and, importantly, in essence, that the service treatment reports did not contain evidence to show symptoms consistent with a transfusion.

In addition, there is no evidence to show that cirrhosis of the liver was manifest to a compensable degree within one year of the Veteran's separation from service.  See 38 U.S.C.A. � 1112, 1137; 38 C.F.R. � 3.307, 3.309.

Additionally, the Board has considered evidence that the Veteran's accounts of his in-service transfusions are not credible.

As the Board has noted above, the Veteran has not only claimed that he received a blood transfusion in service following his gunshot wound to the right arm, he has claimed that he received a blood transfusion after a MVA.  In statements submitted in June 2004 and September 2007, the Veteran describes "getting blood transfusions and many other to keep me alive while I was unconscious" following his April 1964 accident.  He also claimed in the April 2004 statement that his carotid artery had been "crushed."  However, the Veteran's service treatment records show that while the Veteran did experience a period of unconsciousness following his accident, he otherwise sustained only minor injuries.  He had what was described as a "very small laceration" over his left eyebrow, but skull and chest x-rays were normal, as was the Veteran's blood work and urinalysis.  See Narrative Summary from U.S. Naval Hospital in Haven.  There was no evidence of any other injury, including any injury to a major artery such as the carotid artery, undermining the Veteran's recollection of what actually happened.

The objective medical evidence of record, prepared contemporaneous to the Veteran's injuries, contradicts the Veteran's present assertions that he was seriously injured in the April 1964 MVA.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran).

Indeed, the Board finds that the records reflect a troubling pattern of inaccuracies by the Veteran.  See e.g., November 2005 statement from W.F., M.D. (noting a history of a motor vehicle accident in 1964 that caused him to be unconscious for two weeks although service treatment reports show only a brief period of unconsciousness); January 2006 Kaiser report (showing that he reported a history of three years in active combat in Vietnam when service reports and service treatment records indicate no more than 13 months of service in Vietnam); August 2007 VA progress note (reporting a history of losing his left carotid artery due to his 1964 MVA although treatment reports for this incident do not show any carotid artery damage); December 2008 VA examination report (showing that he reported being diagnosed with hepatitis C in 1994 when the first medical evidence of hepatitis C is dated in 2003).  The overwhelming weight of this evidence leads the Board to conclude that the Veteran cannot be considered a credible historian.  See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991).

The Board has considered evidence in the Veteran's service personnel records that includes testimony from other service members that the Veteran was an outstanding Marine that could be relied upon to do a job well and letters from the Veteran's pre-service employers reporting that the Veteran was a hard-working and honest employee, which is not in dispute.  The Veteran's representative cites to this as evidence that the Veteran's statements that he received a transfusion in service should be considered credible.

However, even assuming that the Veteran's honesty forty years ago is relevant to the issue of whether he is being honest now, the Board finds that the Veteran's character or lack thereof, is not necessary synonymous with the credibility of his statements or his recollection of events many years ago.  That is, the Board does not necessarily believe that the Veteran is intentionally trying to defraud VA into awarding him benefits to which he is not entitled.  Rather, the record reflects that the Veteran has suffered episodes of severe confusion attributed to hepatic encephalopathy secondary to his liver disease.  See, e.g., a November 2003 Outpatient Consultation from Kaiser Permanente.  There is a significant difference between a person who is being dishonest and a person who is simply factually mistaken based on an inaccurate recollection of facts.  Further, some of the Veteran's statements, such as his September 2007 statements, have an incoherent, even bizarre quality suggestive by lay observation of cognitive impairment or mental illness.  While the Board is certainly not qualified to diagnose the Veteran with any physical or mental impairment, it does note that there is evidence to suggest that there may be medical reasons why the Veteran is not a reliable historian (but this is not clear).  In any event, the Board's determination should not be considered a slight to the Veteran's highly honorable service.

Thus, the Board finds that testimony concerning the Veteran's character located in his service personnel records has minimal probative value determining whether the Veteran's in-service blood transfusions actually occurred.

The Board has also carefully considered the February 2012 opinion by Dr. P.C., but finds that his conclusion that the Veteran's hepatitis C had onset in service is predominantly, if not totally, based on his determination that the Veteran's account of his in-service blood transfusion was credible.  He also accepted as true the Veteran's statements that he had never used drugs intravenously and had when he got his tattoos in 1963 and 1983 had provided clean needles.  As the Board has determined that the Veteran is not a reliable historian, an opinion based the Veteran's lay statements has minimal probative value.

The Board does note that Dr. P.C. also appears to have relied on a service treatment records which he believed indicated that the Veteran reported "bleeding easily" and which led him to conclude that a transfusion would be more likely.  According to Dr. P.C.'s report, the relevant clinical note showed that the Veteran had a mole on his back, but "denies to have it removed because bleeds easily."  In fact, the full note reads as follows, "Easily traumatized slightly [illegible] 1cm mole over right scapula- desires to have removal because bleeds easily"(emphasis added).  An addendum from the following day shows that the Veteran's mole was excised.  See consultation sheet dated September 13, 1965 with September 14, 1965 addendum.  Thus, viewing the whole note, it appears that the Veteran wanted a mole removed because it was "easily traumatized" and bled easily and so the mole was excised, apparently without complication.  The phrase "bleeds easily" referred to the Veteran's mole, not the Veteran himself.

The Board can find nothing else in the record to suggest that the Veteran has any kind of blood disorder, such as hemophilia, that would cause him to "bleed easily" or make him more likely than the average service member to require a blood transfusion.

Dr. PC. also noted that in December 1965, the Veteran was treated for complaints of a fever of 104 degrees and a sore throat.  The Veteran was diagnosed with a productive upper respiratory infection and purulent tonsillitis.  Dr. P.C. has stated that "[t]hese symptoms represent potential initial symptoms of Hepatitis C" (emphasis added).  However, while cold or flu-like symptoms may be evidence of a hepatitis C infection, Dr. P.C. has not explained why he believes that the particular symptoms he refers to are more likely than not evidence of a hepatitis C infection rather than the tonsillitis the Veteran was diagnosed with by the physician who actually examined him at the time of his illness.  The Board is certainly not suggesting that it is not possible that the Veteran was misdiagnosed in December 1965 and actually was suffering from hepatitis C rather than tonsillitis/upper respiratory; but the standard for granting service connection is not whether something is "possible", but whether it is at least as likely as not.  Merely speculating that a particular set of symptoms is "potentially" evidence of in-service incurrence of hepatitis C is not grounds to grant entitlement to service connection and has no probative value.  See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).

Additionally, the Board has considered a statement from a nurse practitioner in a VA progress note, dated in April 2009, which notes, "He probably likely as not contracted the virus from a transfusion in Vietnam in 1966."  However, this statement is afforded no probative value.  It is not shown to have been based on a review of the Veteran's claims file, or any other detailed and reliable medical history, nor is it accompanied by an explanation or citation to clinical findings.  In addition, this notation was made by a nurse practitioner.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches).

The Board has also considered a notation in a July 2006 QTC psychiatric examination report, that the Veteran has "a past medical history" of hepatitis C and cirrhosis of the liver due to a blood transfusion while in the military.  However, this notation is afforded no probative value, as it is unaccompanied by any explanation or citation to clinical findings, and when read in context it is clearly "by history" only.

In conclusion, while the Veteran's service treatment records clearly document that he sustained a gunshot wound and was involved in a motor vehicle accident in service, the Board finds that there is clear and convincing evidence that the Veteran never received a blood transfusion following these incidents, based on a pattern of factual inaccuracies in the Veteran's statements when compared to other evidence of record, including contemporaneous medical evidence.

The Board makes a factual finding that the Veteran did not receive a blood transfusion at any point during his active military service.

Agent Orange

The Veteran has also suggested that his Hepatitis C and cirrhosis of the liver could have been caused by exposure to Agent Orange.

VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. � 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease.  38 C.F.R. � 3.309(e) (2011).

A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service.  39 U.S.C.A.  � 1116(f) (West 2002); 38 C.F.R. � 3.307(a)(6)(iii) (2011).

VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined a presumption of service connection is warranted.  61 Fed. Reg. 41,446 (1996); 59 Fed. Reg. 341 -46 (1994).  However, an appellant is not precluded from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994).

Here, the Veteran's exposure to Agent Orange is presumed, based on his service in the Republic of Vietnam; however, neither hepatitis C nor cirrhosis of the liver is one of the diseases for which service connection can be granted on a presumptive basis due to exposure to Agent Orange or other herbicides.

The Board has also considered whether service connection for hepatitis C and cirrhosis could be granted on a direct basis based on exposure to Agent Orange, but the Veteran has submitted no evidence of a causal connection between his hepatitis C, cirrhosis of the liver, and in-service herbicide exposure other than his own unsubstantiated claims.

Essentially, the Veteran has offered his opinion as to the etiology of his hepatitis C.  The Veteran has not demonstrated that he has any knowledge or training in determining the etiology of such conditions.  In other words, he is a layman, not a medical expert.  The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology).  Evidence, however, must be competent evidence in order to be weighed by the Board.  Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case.

In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding.  Id.  In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable.  The Board finds that the question of whether the Veteran currently has hepatitis C and cirrhosis of the liver due to his alleged herbicide exposure in service is too complex to be addressed by a layperson.  This connection or etiology is not amenable to observation alone.  Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals.  Hence, the Veteran's opinion of the etiology of his current disabilities is not competent evidence and is entitled to low probative weight.

Other Theories of Entitlement

The Veteran has also suggested that he could have contracted hepatitis C from high risk sexual activity that he engaged in during service or from having open wounds.

Regarding the Veteran's contention that he contracted hepatitis C from open wounds, no medical professional, including Dr. P.C. has opined that the Veteran's hepatitis C was at least as likely as not due to having an open wound in service.
As the Board discussed above, the Veteran himself is not qualified to offer an opinion concerning the etiology of  his hepatitis C or cirrhosis.  Thus, there is no competent evidence to support this theory of entitlement.

Regarding his claim that he contracted hepatitis C in service due to high risk sexual activity, the Veteran has pointed to a notation on his separation examination showing that he was treated for gonorrhea in service.

However, the Board declines to find that being treated for a venereal disease, without other evidence, establishes that the Veteran engaged in high risk sexual activity that exposed him to hepatitis C.  According to VBA Fast Letter 04-13 (June 29, 2004), "Population studies suggest hepatitis C can be sexually transmitted.  However, the chance for sexual transmission of [hepatitis C] is well below comparable rates for HIV/AIDS or hepatitis B infection. . . ."  Thus, it appears that a relatively small percentage of hepatitis C infections are contracted sexually.  While it can be inferred from the Veteran's treatment for gonorrhea that he had unprotected sex on at least one occasion, and it is possible that he also contracted hepatitis C at that time, there is not enough evidence of record to conclude that it is at least as likely as not that the Veteran's hepatitis C was due to high risk sexual activity in service.

As the Board has previously noted, the Veteran is not competent to offer his own opinion concerning the etiology of his hepatitis C and cirrhosis.  The Board also notes that on his Risk Factors for Hepatitis Questionnaire, submitted in June 2004, the Veteran denied engaging in high risk sexual activities, contrary to his current assertions.  See Risk Factors for Hepatitis Questionnaire, June 30, 2004.  The Veteran's inconsistencies undermine his credibly.

Dr. P.C. noted in his opinion that the Veteran reported contracting gonorrhea in service, but stated "there is no relative medical documentation supporting this diagnosis at this time."

The VA examiner had an opportunity to consider all of the evidence of record, including evidence that the Veteran was treated for gonorrhea in service and had open wounds.  However, the examiner concluded that the Veteran's hepatitis C and cirrhosis of the liver did not have onset in service.

In the absence of a medical nexus between the Veteran's claimed risk factors and his current hepatitis C, the Board finds entitlement to service connected cannot be granted.

With regard to other risk factors, the Veteran's service treatment reports indicate that he had a tattoo prior to service.  He has also conceded getting a tattoo after service, in 1983.  The Veteran has insisted that the needles used could not have been contaminated due to factors such being the first customer to use the needles or bringing his own needles.

The post-service medical evidence shows that the Veteran has a history of heavy alcohol use, and drug abuse, to include use of speed, PCP, and methamphetamines.  To the extent that service treatment reports show that the Veteran was suspected of using narcotics, this was never confirmed, nor is there any competent evidence associating in-service use of alcohol or drugs with the claimed conditions or heavy drug use in service that could have caused this disability.

The Board finds that most of the Veteran's drug abuse (a risk factor of the claimed disabilities) was outside of service and not related to service, providing factual evidence against these claims.  Simply stated, the Board finds that, based on a review of the record, the majority of the Veteran's risk factors that most likely caused the Veteran's disabilities began after the Veteran's service, providing a basis to find it unlikely on a factual basis that this disability is related to service.

In any event, the law and regulations provide that compensation shall not be paid if the claimed disability is the result of the person's own willful misconduct or abuse of alcohol or drugs.  See 38 U.S.C.A. �� 105, 1110 (West 2002); 38 C.F.R. �� 3.1(n), 3.301(c) (2011).  With respect to alcohol and drug abuse, Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, � 8052, 104 Stat. 1388 , 1388- 351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a appellant's own alcohol or drug abuse.  Moreover, � 8052 also amended 38 U.S.C. � 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs.  See also VAOPGPREC 2-97 62 Fed. Reg. 15565 (1997).

The issues on appeal are based on the contentions that hepatitis C, and cirrhosis of the liver, were caused by service that ended in 1967.  In this case, when the Veteran's service treatment reports (which do not show that he had the claimed conditions), and his post-service medical records are considered (which indicate that the Veteran has a post-service history of alcohol and drug use for many years, and which do not contain competent, probative evidence of a nexus between either hepatitis C, or cirrhosis of the liver, and the Veteran's service), the Board finds that the evidence outweighs the Veteran's contentions that he has hepatitis C and cirrhosis of the liver that are related to his service.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102 (2011).

The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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, 5126 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2011).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Here, the VCAA duty to notify was satisfied by letter sent to the Veteran in June 2004, September 2004, and May 2006.  These letters informed the Veteran of what evidence is required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence.  The Veteran was also informed of how VA assigns disability ratings and effective dates.

Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ.  Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation."  Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).

In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision.  Although all the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a statement of the case and supplemental statements of the case issued after the notice was provided.  For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication.

VA also has a duty to assist the veteran in the development of the claim.  This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

The RO has obtained the Veteran's service treatment records, as well as VA treatment records and records from the Social Security Administration (SSA).  The veteran submitted private treatment records from Kaiser Permanente, as well as a private medical opinion.  The appellant was afforded a VA medical examination in December 2008.  The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Significantly, neither the appellant nor his or her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

The appeal is denied.

____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: J PARKER

text:
Citation Nr: 1217000
Decision Date: 05/11/12    Archive Date: 05/24/12

DOCKET NO.  09-30 454	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a higher (compensable) initial disability rating for service-connected bilateral hearing loss.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

William Alan Nelson II, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty with the United States Air Force from June 1951 to June 1955.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision, dated July 2008, of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for bilateral hearing loss, and assigned a noncompensable (0 percent) initial disability rating.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2011).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished.

2.  For the entire initial rating period, audiometric testing has revealed, at worst, average puretone threshold of 45 and 90 percent speech recognition in the right ear, and, at worst, average puretone threshold of 62.5 and 88 percent speech recognition in the left ear.

CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss have not been met for any period.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code (DC) 6100 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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, 5126 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2011).

After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the initial rating issue decided herein.  The RO sent the Veteran a letter in April 2008 that informed him of the requirements needed to establish service connection for bilateral hearing loss.  As this case concerns an initial rating and comes before the Board on appeal from the decision which also granted service connection, there can be no prejudice to the Veteran from any alleged failure to give adequate
38 U.S.C.A. � 5103(a) notice for the service connection claim.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. � 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement).

Moreover, in this case, the April 2008 notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment.  The April 2008 notice letter also notified the Veteran that an effective date would be assigned if the claim were granted.

The Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. � 5103A.  VA has obtained service treatment records, personnel records, VA treatment records, a VA examination, and the Veteran's statements.

The Veteran has been afforded adequate examinations on the issue of a higher initial rating for service-connected bilateral hearing loss.  VA provided the Veteran with examinations in April 2008 and December 2010.  At the April 2008 and December 2010 examinations, the claims file and treatment records were reviewed, the Veteran's history was taken, and complete examinations with clinical measures were conducted.  The conclusions reached and diagnoses given were consistent with the examination reports.  Therefore, the Veteran has been afforded adequate examinations on the issue of initial rating for service-connected bilateral hearing loss.   Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi,
16 Vet. App. 183 (2002).

Hearing Loss Rating Criteria

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  38 U.S.C.A. � 1155;
38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. � 4.20 (2011).  In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. � 4.31 (2011).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7 (2011).  In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  38 C.F.R. � 4.21 (2011).  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  38 C.F.R. �� 3.102, 4.3 (2011).

The Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided.  38 C.F.R. � 4.14 (2011).

The Veteran has challenged the initial disability rating assigned to his service-connected bilateral hearing loss by seeking appellate review.  Fenderson v. West,
12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating); see also Proscelle v. Derwinski,
2 Vet. App. 629, 631-32 (1992) (discussing aspects of a claim for increased disability rating).  Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating.  Fenderson, 12 Vet. App. at 126.

The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing.  Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.  38 C.F.R. � 4.85.

The "puretone threshold average" as used in Table VI is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. � 4.85(d).  Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. � 4.86 (2011), the rating may be based solely on puretone threshold testing.  An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. � 4.86(a), (b).

Bilateral Hearing Loss Rating Analysis

The Veteran entered a notice of disagreement with the initial noncompensable (0 percent) disability rating assigned at the time the RO granted service connection for bilateral hearing loss.  He contends that he has been prescribed hearing aids, which reflects his hearing loss is more disabling than 0 percent.  At the VA examination, the Veteran reported that the inability to hear and understand normal conversational speech without the use of amplification was the overall functional impairment he experienced due to bilateral hearing loss.

After a review of all the evidence in this Veteran's case, the Board finds that a preponderance of the evidence is against the Veteran's appeal for an increased compensable disability rating for any period.  For the entire initial rating period, audiometric testing has revealed, at worst, average puretone threshold of 45 and
90 percent speech recognition in the right ear, and, at worst, average puretone threshold of 62.5 and 88 percent speech recognition in the left ear.  For the entire initial rating period during the pendency of the appeal, the service-connected hearing was at worst Level II hearing acuity in the right ear and Level II hearing acuity in the left ear, which results in a noncompensable (0 percent) disability rating under Table VII.  See 38 C.F.R. � 4.85.

The evidence includes an April 2008 VA audiological examination, which reflects puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 25, 35, 20, 40, and 80 decibels, respectively, with an average puretone threshold of 44 decibels.  The speech recognition score for the left ear was 88 percent.  Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 25, 30, 15, 25, and 55 decibels, respectively, with an average puretone threshold of 31 decibels.  The speech recognition score for the right ear was 96 percent.

Using Table VI, applying the results from the April 2008 VA audiological examination, the hearing impairment is Level I in the right ear and Level II in the left ear.  This results in a noncompensable (0 percent) disability evaluation under Table VII.  See 38 C.F.R. � 4.85.

The evidence includes a December 2010 VA audiological examination, which reflects puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 40, 50, 40, 60, and 100 decibels, respectively, with an average puretone threshold of 62.5 decibels.  The speech recognition score for the left ear was 92 percent.  Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 30, 40, 35, 45, and 60 decibels, respectively, with an average puretone threshold of 45 decibels.  The speech recognition score for the right ear was 90 percent.  The examiner noted that the Veteran's reported situation of greatest difficulty was that he was unable to hear and understand normal conversational speech without the use of amplification.

Using Table VI, applying the results from the December 2010 VA audiological examination, the hearing impairment is Level II in the right ear and Level II in the left ear.  This results in a noncompensable (0 percent) disability evaluation under Table VII.  See 38 C.F.R. � 4.85.

The VA audiology examination reports of record show that for the entire period of initial rating appeal the Veteran has, at worst, Level II hearing acuity in the left ear and Level II hearing acuity in the right ear.  The Veteran's level of hearing loss disability, as reflected by audiometric test scores and speech recognition test scores, does not establish entitlement to a higher (compensable) rating for bilateral hearing loss for any period.  As noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to numeric designations assigned to official audiometric results.  See Lendenmann, 3 Vet. App. at 345.

For these reasons, the Board finds that the claim for a higher (compensable) initial rating for bilateral hearing loss must be denied.  The Board has considered the doctrine of affording the Veteran the benefit of the doubt; however, as the preponderance of the evidence is against a higher (compensable) initial rating for the entire initial rating period on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this issue on that basis.  38 C.F.R. �� 4.3, 4.7.

Extraschedular Consideration

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims ("Court") held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In this regard, the December 2010 VA examiner specifically addressed the functional effects caused by the Veteran's bilateral hearing loss disability by noting that the Veteran's reported situation of greatest difficulty was that he was unable to hear and understand normal conversational speech without the use of amplification.

The Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. � 3.321(b) (2011) in considering whether referral for an extra-schedular rating is warranted.  Specifically, the Court noted that, unlike the rating schedule for hearing loss, 38 C.F.R. � 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.  VA's policy requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application.  Martinak, 21 Vet. App. at 455.  Due to the foregoing information, the Board finds that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. � 3.321(b).

Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required.  Only if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, so 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 the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  Thun v. Peake, 22 Vet. App 111, 115-16 (2008).

In this Veteran's case, the Board recognizes and has considered the complaints of being unable to hear and understand normal conversational speech without the use of amplification, which is associated with the service-connected bilateral hearing loss.  The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing.  Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation.  For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's bilateral hearing loss.  In the absence of evidence that the schedular rating criteria is inadequate to rate the Veteran's hearing loss, the Board is not required to remand this case to the RO for the procedural actions outlined in
38 C.F.R. � 3.321(b)(1).  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

ORDER

A higher (compensable) initial rating for service-connected bilateral hearing loss is denied.

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

Department of Veterans Affairs


disposition: granted

benefit: reduction

condition: back

text:
Citation Nr: 1218000
Decision Date: 05/21/12    Archive Date: 05/31/12

DOCKET NO.  09-07 934	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas

THE ISSUE

Entitlement to restoration of a 40 percent disability rating for low back strain from February 1, 2008.

REPRESENTATION

Appellant (the Veteran) is represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

L. Cramp, Counsel

INTRODUCTION

The Veteran had active service from August 1980 to July 1992.

This appeal comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the RO in Waco, Texas.

While the Veteran indicated on the VA Form 9 that he wanted a Board hearing, he withdrew his request in April 2009 correspondence and requested a hearing before RO personnel at that time.  In July 2009, the Veteran provided testimony at a hearing before RO personnel.  A transcript of that hearing is of record.

The Board acknowledges that the rating reduction effected by the March 2008 rating decision arose from the Veteran's claim for an increased rating, in excess of 40 percent, for his low back disorder; however, his assertions on appeal have been limited to his disagreement with the rating reduction.  Therefore, the current appeal does not involve the issue of a disability rating in excess of 40 percent for low back strain.

FINDINGS OF FACT

1.  The VA examination upon which the decision to reduce the disability rating for low back strain was made was inadequate.

2.  At the time of the reduction from 40 percent to 20 percent, there had been no actual improvement in the Veteran's low back strain.

CONCLUSION OF LAW

Reduction of the disability rating for low back strain from 40 percent to 20 percent was improper; the criteria for restoration of a 40 percent rating for low back strain from February 1, 2008 have been met.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.105, 3.159, 3.343, 3.344, 4.1-4.14, 4.71a, Diagnostic Code 5243 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. �� 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.156(a), 3.326(a) (2011).

As the Board is granting in full the benefit sought on appeal, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. � 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Analysis of Propriety of Reduction/Restoration

The Veteran is seeking restoration of a 40 percent rating for low back strain, which was reduced to 20 percent in a March 2008 rating decision, effective February 1, 2008.  In that same decision, the RO also granted service connection for right lower extremity and left lower extremity radiculopathy associated with low back strain, and assigned separate 10 percent ratings for each lower extremity, effective September 21, 2007.

VA law requires that, when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease in payment of compensation benefits being made, a rating proposing the reduction will be prepared setting forth all material facts and reasons.  The beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation payments should be continued at the current level.  See 38 U.S.C.A. � 5112; 38 C.F.R. � 3.105(e).  Additionally, under 38 C.F.R. � 3.105(i), the advance written notice concerning a proposed rating reduction must inform the beneficiary that he has a right to a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice.

In this case, a proposed rating was not issued by the RO prior to the reduction.  To this extent, the Board finds that the RO followed the correct procedure.  VA's General Counsel has interpreted the applicable statute and regulation as distinguishing between rating reductions that do not involve a reduction in the overall amount of compensation payable to a beneficiary, and those that do.  Where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) is not applicable.  See VAOPGCPREC 71-91.  The Board is bound in its decisions by the regulations, the Secretary's instructions, and the precedent opinion of the chief legal officer of VA.  38 U.S.C.A. � 7104(c) (West 2002).  In this case, the grant of service connection for right lower extremity and left lower extremity radiculopathy offset the decreased disability rating for low back strain, and the combined disability rating was not reduced.

The Board acknowledges that, due to different effective dates for the grant of service connection for lower extremity radiculopathy (September 21, 2007) and the reduction of the low back rating (February 1, 2008), there is a period in which a 70 percent combined rating was in effect.  The Board finds that the point for comparison is the combined rating as it existed prior to the rating decision that effectuated the reduction in the evaluation for the specific disability.  Specifically 38 C.F.R. � 3.105(e) refers to a reduction or discontinuance of compensation payments currently being made.  This would indicate that the point for comparison is the level of compensation being paid at the time the reduction decision is issued.  At the time the March 2008 rating decision which effectuated the reduction was issued, the combined rating was 60 percent.  The reduction in the rating for the low back and the grant of service connection for lower extremity radiculopathy, as effectuated in the March 2008 rating decision, resulted in a combined rating of 60 percent.  Accordingly, although there is a brief period during which a 70 percent rating was assigned, that was a result of the March 2008 decision, and is not the point for comparison.

The Board also acknowledges that the United States Court of Appeals for Veterans Claims (the CAVC) has recently held, in a case involving a knee disability, that the changing of diagnostic codes based on current evidence of knee arthritis but no current evidence of the previously rated knee laxity, after that rating had been in effect for over 20 years (and thus protected pursuant to 38 C.F.R. � 3.951) constituted a reduction that warranted reversal.  See Murray v. Shinseki, No. 09-0158 (U.S. Vet. App. June 15, 2011).  In pertinent part, 38 C.F.R. � 3.951 states that "[a] disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes . . . will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud").  In this case, the 40 percent rating was not protected and had been in place for less than two years at the time of the reduction.  Accordingly, the Board finds that the Murray decision does not alter the analysis in this case.  The provisions of 38 C.F.R. � 3.105(e) do not apply, and a proposal to reduce the rating from 40 percent to 20 percent was not necessary.

While the procedural protections of 38 U.S.C.A. � 5112 and 38 C.F.R. � 3.105(e) do not apply in this case, the standards for effectuating a reduction based on improvement are applicable, as set forth in 38 C.F.R. � 3.344.  The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. � 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination.  See Brown v. Brown, 5  Vet. App. 413, 417-418 (1993).  As noted above, the 40 percent rating was in effect for less than two years in this case.

With respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction.  38 C.F.R. � 3.344(c).  Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations.  In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work.  See Brown, 5  Vet. App. at 420-421 (citing 38 C.F.R. �� 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c).

After a review of the all of the evidence in this case, the Board finds that reduction of the disability rating for low back strain from 40 percent to 20 percent was not proper, and a restoration of the 40 percent rating from February 1, 2008 is warranted.  In so finding, the Board notes that the January 2008 VA examination upon which the decision to reduce was based is inadequate for the purpose of a rating reduction.  It is apparent from the examination report that, while the examiner acknowledged review of unspecified records, the complete claims file was not reviewed, as the examination report indicates that such review was not requested.  See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio).  Significant to the holding in Tucker was the CAVC's reasoning that determinations as to whether there is an actual change in disability, rather than a temporary fluctuation in symptoms, and whether an improvement in a disability actually reflected an improvement in a veteran's ability to function under the ordinary conditions of life and work, are in part medical determinations which require an examination that is informed by a review of a veteran's medical history.  While an October 2009 VA examination is of record and includes a review of the claims file by that examiner, this occurred after the rating reduction, and was not the examination upon which the reduction was based.

In addition, the Board finds that the January 2008 VA examination upon which the reduction was based does not demonstrate an actual improvement in low back disability that is likely to continue.  During the August 2006 VA examination that precipitated the increase to a 40 percent rating, the Veteran's range of motion could not be measured due to pain on motion.  While range of motion was reported during the January 2008 VA examination, the entire range of flexion was noted as painful.  Thus, at each examination, all motion of the low back was painful.  The fact that the Veteran attempted range of motion in January 2008, but did not attempt range of motion in August 2006, appears to be the principal distinction in the two results.  The Board finds that this is not persuasive evidence of an improvement in the level of disability.  Moreover, the Veteran reported that his low back disability is subject to flare ups, described as severe, which occur every two to three weeks, and which last one to two days.  The Veteran reported that there is a decrease in range of motion during flare ups.  In essence, while it was acknowledged that the low back disability was subject to flare ups, and that such flare ups reduce range of motion, there was no attempt to correlate what appeared to be an improvement in range of motion in January 2008 (as opposed to August 2006) with the presence or absence of a flare up during either of those examinations.

The Board notes that a rating reduction is contrasted from an ordinary rating decision.  The regulations specifically provide that a reduction may not be based solely on a determination that the schedular criteria for the lower rating are more appropriate.  Rating reductions necessarily involve a comparative analysis of the evidence utilized to establish the level of disability prior to the proposed reduction, and the evidence which serves as the basis for the proposed reduction.  The evidence of record must demonstrate improvement in the level of disability and that such improvement will likely continue.  Based on a review of the evidence used to support the reduction from 40 percent to 20 percent, the Board finds that such evidence does not demonstrate an improvement in the level of disability and that such improvement will likely continue.

In sum, the examination upon which the rating reduction for low back strain from 40 percent to 20 percent was based was an inadequate examination, as the examiner

reported that he did not review the claims file.  In addition, that examination did not demonstrate improvement in the level of disability and that such improvement will likely continue.  Accordingly, the Board finds that restoration of the 40 percent rating for the low back disability is warranted from February 1, 2008.

ORDER

Restoration of a 40 percent disability rating for the service connected lumbar spine disability from February 1, 2008 is granted.

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

Department of Veterans Affairs