judge_norm: MARK F HALSEY

condition: liver

text:
Citation Nr: 0927000
Decision Date: 07/20/09    Archive Date: 07/30/09

DOCKET NO.  04-25 358	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia

THE ISSUES

1.  Entitlement to service connection for hepatitis C.

2.  Entitlement to a total disability rating based on
individual unemployability due to service-connected
disability (TDIU).

REPRESENTATION

Appellant represented by:	Georgia Department of Veterans
Services

ATTORNEY FOR THE BOARD

D. Richard Rasmussen, Associate Counsel

INTRODUCTION

The Veteran had active military service from October 1971 to
August 1974.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia.

In July 2006 and April 2007, the Board remanded the Veteran's
claims for additional development

FINDING OF FACT

The Veteran does not have hepatitis C that is attributable to
his active military service.

CONCLUSION OF LAW

The Veteran does not have hepatitis C that is the result of
disease or injury incurred in or aggravated during active
military service.  38 U.S.C.A. �� 1110, 5107 (West 2002);
38 C.F.R. �� 3.102, 3.159, 3.303, 3.304 (2008).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Board notes the enactment of the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000), in November 2000.  See 38 U.S.C.A. �� 5100,
5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009).  To
implement the provisions of the law, VA promulgated
regulations codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a) (2008).  The VCAA and its implementing regulations
include, upon the submission of a substantially complete
application for benefits, an enhanced duty on the part of VA
to notify a claimant of the information and evidence needed
to substantiate a claim, as well as the duty to notify the
claimant of what evidence will be obtained by whom.
38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b).  In addition,
they define the obligation of VA with respect to its duty to
assist a claimant in obtaining evidence.  38 U.S.C.A.
� 5103A; 38 C.F.R. � 3.159(c).

(The Board notes that 38 C.F.R. � 3.159 was revised,
effective May 30, 2008.  See 73 Fed. Reg. 23353-56 (Apr. 30,
2008).  The amendments apply to applications for benefits
pending before VA on, or filed after, May 30, 2008.  The
amendments, among other things, removed the notice provision
requiring VA to request the claimant to provide any evidence
in the claimant's possession that pertains to the claim.  See
38 C.F.R. � 3.159(b)(1).)

The Board finds that all notification and development action
needed to render a decision as to the claims on appeal has
been accomplished.  Through October 2002 notice letters, the
RO notified the Veteran of the information and evidence
needed to substantiate his claims.  By a July 2007 notice
letter, the agency of original jurisdiction (AOJ) provided
the general criteria for assigning disability ratings and
effective dates.  See Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311
(Fed. Cir. 2007).  Although the complete notice was not
provided until after the RO initially adjudicated the
Veteran's claims, the claims were properly re-adjudicated in
May 2009 by the AOJ, following the July 2007 notice letter.
See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006).

The Board also finds that the October 2002 notice letters
satisfy the statutory and regulatory requirement that VA
notify a claimant which evidence, if any, will be obtained by
the claimant and which evidence, if any, will be retrieved by
VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002)
(addressing the duties imposed by 38 U.S.C. � 5103(a) and
38 C.F.R. � 3.159(b)).  In those letters, the RO notified the
Veteran that VA was responsible for obtaining relevant
records from any Federal agency and that the RO would make
reasonable efforts to obtain relevant records not held by a
Federal agency, such as from a state, private treatment
provider, or an employer.  Additionally, the notice letters
requested the Veteran to submit medical evidence, opinions,
statements, and treatment records regarding his disabilities.

There is no indication that any additional action is needed
to comply with the duty to assist in connection with the
service connection issue on appeal.  The Veteran's service
treatment records (STRs) and personnel records have been
obtained and associated with the claims file.  The Veteran
identified the Atlanta VA Medical Center (VAMC), the
Cincinnati VAMC, Diamond Headache Clinic, West Georgia
Neurology, PC, a Dr. Santavicca, and a Dr. Lee as treatment
providers with relevant records.  Available records from
those treatment providers were obtained.  Significantly, the
Veteran has not otherwise alleged that there are any
outstanding medical records probative of his claim of service
connection on appeal that need to be obtained.  Thus, VA has
properly assisted the Veteran in obtaining any relevant
evidence.

Additionally, in October 2006 and May 2007 the Veteran was
afforded VA examinations, the reports of which are of record.
When VA undertakes to provide a VA examination or obtain a VA
opinion, it must ensure that the examination or opinion is
adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
As noted below, the Board finds that the May 2007 VA opinion
obtained in this case is sufficient as it is predicated on
consideration of the private and VA medical records in the
Veteran's claims file, as well as examination findings.  It
considers the statements of the Veteran and provides a
rationale for the opinions stated, relying on and citing to
the records reviewed.  Accordingly, the Board finds that VA's
duty to assist with respect to obtaining a VA examination or
opinion with respect to the issue on appeal has been met.
38 C.F.R. � 3.159(c)(4).

II.  Analysis

The Veteran contends that he acquired hepatitis C as a result
of his active military service.  Specifically, in an August
2007 statement, he attributes his claimed disability to
sharing razors in service.  Thus, the Veteran contends that
service connection is warranted for hepatitis C.

Service connection may be established for a disability
resulting from disease or injury incurred in, or aggravated
by, active military service.  38 U.S.C.A. � 1110 (West 2002);
38 C.F.R. �� 3.303, 3.304 (2008).  In general, service
connection requires:  medical evidence of a current
disability; medical or, in certain circumstances, lay
evidence of incurrence or aggravation of a disease or injury
in service; and medical evidence of a nexus between the
claimed in-service injury or disease and the current
disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999).

In the absence of in-service documentation, service
connection may be warranted for hepatitis C if the competent
medical evidence shows the disease is related to one or more
risk factors to which the Veteran was exposed while in active
service.  See VA, Veterans Benefits Administration, Training
Letter Based on Hepatitis C Case Review, TL 01-02 (April 17,
2001).  According to the training letter, medically
recognized risk factors for exposure to hepatitis C are:
transfusions of blood or blood product before 1992; organ
transplants before 1992; hemodialysis; tattoos; body
piercings; intravenous drug use; high-risk sexual activity;
intranasal cocaine use; occupational exposure to blood
products in health care workers by percutaneous exposure or
on mucous membrane; other direct percutaneous exposure to
blood.  Where multiple pre-service, in-service, and/or post-
service risk factors are identified, a VA examiner must
discuss all pertinent risk factors and opine about the
relationship between the current hepatitis C infection and
all confirmed risk factors.  Id.

A review of the Veteran's STRs reveals that the Veteran was
not diagnosed with or treated for a liver disease, including
hepatitis, in service.  The Veteran's June 1971 entrance
examination report indicates that the Veteran reported no
stomach, liver, or intestinal trouble and was found to be
normal with regard to any liver condition.  Although the
remaining STRs indicate several treatments for sexually
transmitted diseases, the records are silent for any
treatment for or diagnosis of hepatitis or other liver
disorder.

A review of the Veteran's post-service medical treatment
records reveals that the Veteran was first diagnosed with
hepatitis C in January 1999 at the Atlanta VAMC.  A March
2002 treatment record from the Atlanta VAMC lists risk
factors of exposure to blood or blood products and multiple
sexual partners.  A September 2002 treatment record from the
Atlanta VAMC indicates that the Veteran's exposure to blood
or blood products risk factor stems from his employment in
hematology, chemical, and phlebotomy labs at the Dallas VAMC
between 1976 and 1977, and the Veteran was noted as having
said, "I'm sure I've gotten stuck here or there" as part of
his responsibilities.  A January 2003 treatment record
indicates that the Veteran reported that as a phlebotomist,
he did get stuck several times.  In an August 2007 statement,
the Veteran listed his left ear being pierced in 1970 and
sharing razors during service as risk factors for hepatitis C
exposure.

In October 2006, the Veteran was afforded a VA examination in
connection with his claim.  The examiner reviewed the claims
file and examined the Veteran.  The examiner noted the
following risk factors:  employment exposure to blood and
blood products; shared razors in service; air gun injections
commonly used by the military at the time the Veteran was in
service; and exposure through sexual contact.  The examiner
failed to provide an opinion as to the medical probabilities
that the Veteran's hepatitis C was traceable to his period of
active military service.

In May 2007, the Veteran was again afforded a VA examination
in connection with this claim.  The examiner reviewed the
claims file and all associated medical evidence.  The
examiner noted the only risk factor supported by the evidence
of records was exposure to blood and blood products as a part
of the Veteran's employment at the Dallas VAMC.  The examiner
concluded that it was less likely than not that he Veteran's
hepatitis C was traceable to his period of active military
service.  The examiner reasoned that the additional risk
factors previously considered could not be conclusively
attributed to the Veteran's active military service-the
other risk factors were not shown by the evidence of record
to be attributable to the Veteran's active military service.

The Board finds that the May 2007 examiner provided a well-
reasoned opinion, supported by the evidence of record, in
which she did not attribute the Veteran's hepatitis C to his
period of active military service.  Although there is
evidence that the Veteran had multiple sexual partners while
in service and he has said that he shared a razor and was
inoculated with a jet injector during service, the examiner
considered these factors and by implication ruled them out as
the likely cause of hepatitis C.  In addition, the Veteran's
ear piercing predated his military service and his employment
exposure to blood and blood products occurred after he was
separated from service.  Thus, without competent medical
evidence attributing the Veteran's hepatitis C to his active
military service, service connection is not warranted.  See
38 C.F.R. � 3.304.

While the Board does not doubt the sincerity of the Veteran's
belief that his hepatitis C is attributable to his active
military service, as a lay person, without the appropriate
medical training or expertise, he is not competent to provide
a probative opinion on a medical matter such as the diagnosis
or etiology of a current disability.  See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).  The VA examiner
clearly took into account the Veteran's complaints and
contentions and arrived at medical conclusions contrary to
his claims.  The Board places greater weight on the
examiner's opinion because of her expertise.

For the foregoing reasons, the Board finds that the claim of
service connection for hepatitis C must be denied.  In
reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine; however,
because the preponderance of the evidence is against the
Veteran's claim of service connection, that doctrine is not
applicable.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102;
Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).

ORDER

Service connection for hepatitis C is denied.

REMAND

In a July 2004 statement, the Veteran contends that his
service-connected disability precludes him from engaging in
substantially gainful employment.  Thus, the Veteran contends
that a total disability rating is warranted.

A total disability rating based on individual unemployability
due to service-connected disability (TDIU) may be assigned
where the schedular rating is less than total, when it is
found that the disabled person is unable to secure or follow
a substantially gainful occupation as a result of service-
connected disability.  See 38 C.F.R. �� 3.340, 3.341, 4.15,
4.16 (2008).  This is so, provided the unemployability is the
result of a single service-connected disability ratable at
60 percent or more, or the result of two or more service-
connected disabilities, where at least one disability is
ratable at 40 percent or more and there is sufficient
additional service-connected disability to bring the combined
rating to 70 percent or more.  38 C.F.R. � 4.16(a).

An October 2006 VA examination report indicates that the
Veteran has a GED and 17-18 years of education, including
mortuary science, real estate certificate, and school for
income tax preparation.  The Veteran last worked full-time as
a mail handler in October 1994.  He has been awarded service
connection for headaches, which have been rated as 50 percent
disabling.  As such, the Veteran does not meet the criteria
for consideration for entitlement to TDIU on a schedular
basis because the single 50 percent rating does not satisfy
the percentage requirements of 38 C.F.R. � 4.16(a).

Nevertheless, a Veteran may be entitled to TDIU on an extra-
schedular basis if it is established that he is unable to
secure or follow substantially gainful employment as a result
of the effect of his service-connected disability.  38 C.F.R.
� 4.16(b).  Consequently, the Board must determine whether
the Veteran's service-connected disability precludes him from
engaging in substantially gainful employment (work that is
more than marginal, which permits the individual to earn a
"living wage").  Moore v. Derwinski, 1 Vet. App. 356
(1991).  The fact that a Veteran may be unemployed or has
difficulty obtaining employment is not determinative.  The
ultimate question is whether a Veteran, because of service-
connected disability, is incapable of performing the physical
and mental acts required by employment, not whether he can
find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993).  An inability to work due to advancing age may not be
considered.  38 C.F.R. �� 3.341(a), 4.19 (2008).  In making
its determination, VA considers such factors as the extent of
the service-connected disability, and employment and
educational background.  See 38 C.F.R. �� 3.321(b), 3.340,
3.341, 4.16(b), 4.19.

The Veteran's service-connected headache disability has been
evaluated under Diagnostic Code 8100 for migraine, under
which a 50 percent rating is assigned for very frequent
completely prostrating and prolonged attacks productive of
severe economic inadaptability.  38 C.F.R. � 4.12a
(Diagnostic Code 8100).  (The 50 percent rating is the
highest rating available for this disability under the
schedule.)

A review of the Veteran's post-service medical treatment
records reveals that the Veteran has received treatment for
his headache disability.  A December 1995 examination from
West Georgia Neurology, PC indicates that the Veteran
suffered from posttraumatic headaches, probably mixed
headaches with both migraine and muscle contraction
components and that the headaches were so severe that the
Veteran was unable to work as a result.  A May 1996 letter
from a Dr. Lee indicates ongoing treatment by himself and
Drs. McGuigan and Saba and that, at times, the Veteran's
headaches were so severe that he was unable to function in
any way.  A May 1996 examination from a Dr. Santavicca
indicates that the Veteran exhibited several factors that
supported a diagnosis of right parietal damage; however, it
was unlikely that those conditions existed during the
Veteran's college and post-graduate education as such
conditions would have made such achievements unattainable.

In October 1998, the Veteran was afforded an examination in
connection with his service-connected disability.  At the
examination the Veteran reported a head injury in 1973 when
struck by a trailer hitch.  He had no loss of consciousness,
but began having headaches afterwards.  In addition, he
reported two subsequent head injuries, in 1993 and 1994.  In
both cases, he reported that boxes somehow fell off shelves,
striking him in the head.  Again he did not lose
consciousness.  The examiner noted that the Veteran's
headaches were mainly on the left side and associated with
blurred vision and short-term memory loss; the Veteran had
headaches at least five times a week, sometimes lasting all
day; the Veteran's headaches were precipitated by light and
noise and the Veteran's functional levels during headaches
was none.  The Veteran had marked intolerance for light and
wore dark glasses at all times.  The examiner noted no acute
distress and found that the Veteran's cranial nerves two
through twelve were normal and that he had an adequate sense
of smell.  The Veteran's eyes revealed extreme photophobia
and tearing with minimum light into the eyes.  There was
blepharospasms and pain with marked constriction of the
pupils in response to light.  The examiner could not perform
an adequate funduscopic examination due to this state.  At
the examination there was general right-sided grade four
muscle power weakness.  The examiner diagnosed the Veteran
with mild right-sided weakness, severe photophobia, and
equilibrium disturbance associated with headache.  The
examiner opined that the Veteran's ability to work at his
usual occupation, as well as his activities of daily living,
were adversely impacted by his headaches.

November 1998 treatment records from the Diamond Headache
Clinic indicate that the Veteran was hospitalized due to the
severity of his headaches and upon discharge received several
prescriptions to manage the pain from his headaches.  In
addition, those records indicate that the Veteran has
received treatment from the above-mentioned practitioners as
well as a VAMC in Alabama.  The Board notes that there are no
records from Dr. McGuigan or Dr. Saba and incomplete records
from Dr. Lee and the Diamond Headache Clinic.  In addition,
the Board notes that there are no treatment records from a
VAMC in Alabama associated with the claims file.

Medical treatment records from the Atlanta VAMC indicate the
following:  the Veteran received treatment for headaches in
August 1997 and February 1998; in March 2002 the Veteran
reported a history of severe headaches that can last as long
as a month at a time accompanied by blurred vision and that
he receives ongoing private treatment from Drs. Lee,
McGuigan, and Saba and from the Diamond Headache Clinic; in
May 2003 the Veteran reported that he had private treatment
prescriptions for methadone and Percocet to manage his
headache pain; in June 2003 the Veteran indicated that his
headaches can last up to a week at a time; in June 2004 the
Veteran reported that had weaned himself off all of his
headache medicine; however, in December 2004 the Veteran
again reported that he had private prescriptions for
methadone, Percocet, and Dilaudid, and that he received Botox
injections to manage the pain of his headaches; in June 2005
the Veteran reported that his pain was zero, that he was no
longer receiving Botox injections, and was "now taking very
few pain meds;" however, in November 2005 the Veteran
reported that his pain was seven out of ten; in December 2005
the Veteran reported experiencing "cluster headaches;" and
in May 2006 the Veteran  reported severe headaches that
caused him to be in bed for several days at a time.  The most
recent medical treatment records associated with the claims
file are November 2006 records from the Atlanta VAMC.

In December 2002, the Veteran was given a neurological
examination in connection with this claim.  The examiner
reviewed the claims file and examined the Veteran.  The
examiner diagnosed the Veteran with headaches secondary to an
in-service head injury that have been aggravated by the 1993
and 1994 head injuries.  The examiner opined that,

I do believe, that these headaches have a
significant psychological/psychiatric
overlay to them, and his degree of
employability would not be determined so
much by the headaches, as it would be by
his psychiatric disturbances, of which he
has many, according to the [claims] file.
In regards to headache treatment and
employability, I do believe that this
gentleman has some degree of
employability, and I do not believe that
the headaches are the sole reason as to
why he cannot be gainfully employed.

In October 2006, the Veteran was again given a neurological
examination in connection with this claim.  The examiner
reviewed the claims file and examined the Veteran.  The
examiner noted that the Veteran reported a total of three
head injuries and that the Veteran reported that his symptoms
have been present since his initial accident, but have
worsened significantly since his third head injury.  The
examiner recommended a repeat neuropsychiatric test to assess
whether the Veteran's cognitive deficits had progressed, as
well as to assess which symptomatology might be related to
his cognitive deficits versus other psychiatric disorder.  At
the repeat examination the examiner reported that,

Test results revealed impairments in most
assessed areas.  However, results are not
a valid and reliable estimate of current
cognitive functioning given the
inconsistencies between observed
behaviors, long-term reported adaptive
functioning, and test results.  In
addition, specific tests indicated [the
Veteran] was falsifying or exaggerating
symptoms and that the pattern of results
did not correspond to known problems
associated with brain disorders or
psychiatric illness.  In conclusion, the
present results do not document a
worsening of [Veteran's] cognitive
functioning or psychological functioning.
These results provide evidence of a
pattern of symptom reporting which is
associated with malingering.  [Veteran]
is currently trying to increase his
[service connection] rating to
100 [percent] because he is
"unemployable."

The Board finds that further development is necessary to
address the current severity of the Veteran's service-
connected headaches and the impact of that disability on the
Veteran's employability.  Because the complete medical
records from Dr. Lee, Dr. McGuigan, Dr. Saba, the Diamond
Headache Clinic, and a VAMC in Alabama have not been
associated with the claims file, and the most recent medical
evidence of record is dated in November 2006, the Board finds
that the medical evidence of record is inconclusive as to the
present level of severity of the Veteran's service-connected
disability and to the impact of that disability on his
employability.  A March 2002 treatment record from the
Atlanta VAMC indicates that the Veteran was receiving ongoing
treatment from Dr. Lee, Dr. McGuigan, Dr. Saba, and the
Diamond Headache Clinic; therefore, complete private medical
treatment records from those treatment providers should be
associated with the claims file.  VA regulations require VA
to obtain a medical opinion based on the evidence of record
if VA determines such evidence is necessary to decide the
claim.  See 38 U.S.C.A. � 5103A(d)(2) (West 2002); 38 C.F.R.
� 3.159(c)(4)(i) (2008).  A medical opinion is necessary if
the information and evidence of record does not contain
sufficient competent medical evidence to decide the claim.
See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As such,
the Board will, therefore, remand the case to obtain the
missing medical treatment records and to schedule the Veteran
for a VA examination to obtain a medical opinion regarding
the current severity of the Veteran's service-connected
headaches and the impact of that disability on the Veteran's
employability.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify all
treatment providers who might possess
evidence relevant to the treatment of
headaches.  Ask the Veteran to submit the
records if he has them in his possession.
Request treatment records from the
Diamond Headache Clinic, Dr. Lee, Dr.
McGuigan, and Dr. Saba and any other
medical facility identified by the
Veteran.  Obtain releases from the
Veteran as necessary.

2.  Obtain the Veteran's VA treatment
records pertinent to headache treatment
from the Atlanta VAMC prepared since
November 2006, and associate the records
with the claims folder.  Obtain the
Veteran's VA treatment records pertinent
to headache treatment from any VA
facility visited by the Veteran.  Assist
the Veteran in obtaining any identified
records.

3.  Ask the Veteran if he has applied for
disability benefits from the Social
Security Administration (SSA).  If so,
obtain from SSA all of the medical
records upon which any decision
concerning the Veteran's initial or
continuing entitlement to benefits was
based, as well as any SSA decision and
the associated List of Exhibits.  (The
procedures set forth in 38 C.F.R.
� 3.159(c) (2008) regarding requesting
records from Federal facilities must be
followed.)  All records and/or responses
received should be associated with the
claims file.

4.  The Veteran should be scheduled for a
neuropsychiatric examination.  The
examiner should review the claims file,
including those records that suggest both
psychiatric and neurologic factors
affecting employability, and provide
findings that take into account all
functional impairments due solely to the
Veteran's service-connected headache
disability.  The examiner is requested to
provide an opinion as to whether the
Veteran's service-connected headaches
make him unable to secure or follow
substantially gainful employment.  The
opinion should take into account the
Veteran's employment history, and his
educational and vocational attainment.
However, the examiner should consider
only the impact of service-connected
headaches on employability.  The bases
for the opinion provided should be
explained in detail.  The examiner should
explain whether there exists any
malingering or exaggeration of symptoms
as suggested by earlier examiners.  (The
Board recognizes that a certain degree of
conjecture is required to arrive at any
medical opinion; the examiner should
state his or her opinion regarding
employability due to service-connected
disability even if a certain level of
speculation is required to do so.)

After the requested examination has been
completed, the report should be reviewed
to ensure it is in complete compliance
with the directives of this remand.  If
the report is deficient in any manner, it
should be returned to the examiner.  See
Stegall v. West, 11 Vet. App. 268 (1998).

5.  After undertaking any other
development deemed appropriate, re-
adjudicate the claim of service
connection for TDIU.  If any benefit
sought is not granted, furnish the
Veteran and his representative with a
supplemental statement of the case (SSOC)
and afford them an opportunity to respond
before the record is returned to the
Board for further review.

By this remand, the Board intimates no opinion as to any
final outcome warranted.  No action is required of the
Veteran until he is notified by VA.  The Veteran has the
right to submit additional evidence and argument on the
matter the Board has remanded.  Kutscherousky v. West, 12
Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law
requires all claims remanded by the Board 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
2002 & Supp. 2009).

________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: RONALD W SCHOLZ

disposition: denied

condition: eye

text:
Citation Nr: 0928000
Decision Date: 07/28/09    Archive Date: 08/04/09

DOCKET NO.  06-21 826	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico

THE ISSUES

1.  Entitlement to an increased rating for service-connected
anatomical loss of the left eye, currently rated 40 percent
disabling.

2.  Entitlement to an increased rating for service-connected
unilateral ptosis of the left eye, currently rated 30 percent
disabling.

3.  Entitlement to service connection for a right eye
disability, as secondary to service connected left eye
disability.

4.  Entitlement to service connection for headaches, as
secondary to service connected left eye disability.

5.  Entitlement to service connection for sinus disability,
as secondary to service connected left eye disability.

6.  Entitlement to service connection for an acquired
psychiatric disorder to include PTSD, as secondary to service
connected left eye disability.
REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Counsel

INTRODUCTION

The Veteran served on active duty from April 1979 to November
1982.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from an April 2004 and subsequent rating
decisions from the Albuquerque, New Mexico, Department of
Veterans Affairs (VA) Regional Office (RO).

The issues of entitlement to an increased rating for service-
connected unilateral ptosis of the left eye, and entitlement
to service connection for a right eye disability, headaches,
sinus disability, and an acquired psychiatric disorder to
include PTSD 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.

FINDING OF FACT

The Veteran has anatomical loss of the left eye, with
corrected visual acuity of no worse than 20/40 in the left
eye.

CONCLUSION OF LAW

Criteria for a rating in excess of 40 percent for anatomical
loss of the left eye have not been met.  38 U.S.C.A. �� 1155,
5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. �
4.84a, Diagnostic Code 6066 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a complete or substantially complete
application, VA must notify the claimant of the information
and evidence not of record that is necessary to substantiate
a claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide.  38 U.S.C.A. � 5103(a).

The notice requirements apply to all five elements of a
service connection claim: 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); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).

The notice must be provided to a claimant before the initial
unfavorable adjudication by the RO.  Pelegrini v. Principi,
18 Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In
any event, the Veteran has neither alleged nor demonstrated
any prejudice with regard to the content or timing of the
notices.  See Shinseki v. Sanders, --- S.Ct.---, 2009 WL
1045952 (U.S.) (Apr. 21, 2009) (Reversing prior case law
imposing a presumption of prejudice on any notice deficiency,
and clarifying that the burden of showing that an error is
harmful, or prejudicial, normally falls upon the party
attacking the agency's determination.)  See also Mayfield v.
Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The RO provided the appellant pre-adjudication notice by
letter dated in March 2005.

The notification substantially complied with the requirements
of Quartuccio v. Principi, 16 Vet. App. 183 (2002),
identifying the evidence necessary to substantiate a claim
and the relative duties of VA and the claimant to obtain
evidence.

The Veteran was provided a statement of the case, and any
notice errors did not affect the essential fairness of the
adjudication as VA has obtained all relevant evidence, and as
the Veteran has demonstrated actual knowledge of what was
necessary to substantiate the claim.  Id., Vazquez-Flores,
supra.  As both actual knowledge of the Veteran's procedural
rights, and the evidence necessary to substantiate the claim
have been demonstrated and he, and those acting on his
behalf, have had a meaningful opportunity to participate in
the development of his claims, no prejudice to the Veteran
will result from proceeding with adjudication without
additional notice or process.  Specifically, the Veteran's
representative, in July 2009 written argument, noted that the
Veteran's corrected visual acuity of the remaining right eye
was 20/20 on VA examination.  Regarding claims involving loss
of an eye, the corrected visual acuity of the remaining eye
is the only factor in determining an increased rating.

VA has obtained service treatment records, assisted the
appellant in obtaining evidence, afforded the appellant
physical examinations, obtained medical opinions as to the
severity of disability, and afforded the appellant the
opportunity to give testimony before the Board.  All known
and available records relevant to the issues on appeal have
been obtained and associated with the appellant's claims
file; and the appellant has not contended otherwise.

VA has substantially complied with the notice and assistance
requirements and the appellant is not prejudiced by a
decision on the claim at this time.
II.  Analysis

Ratings for service-connected disabilities are determined by
comparing the symptoms the Veteran is presently experiencing
with various criteria set forth in VA's Schedule for Rating
Disabilities (Rating Schedule)-which is based on average
impairment in earning capacity.  See 38 U.S.C.A. � 1155; 38
C.F.R. � 4.1.  Separate diagnostic codes identify the various
disabilities.  When a question arises as to which of two
ratings apply under a particular diagnostic code, the higher
evaluation is assigned if the disability more closely
approximates the criteria for the higher rating; otherwise,
the lower rating will be assigned.  38 C.F.R. � 4.7.  And
after careful consideration of the evidence, any reasonable
doubt remaining is resolved in favor of the veteran.  38
C.F.R. � 4.3.  Also, when making determinations concerning
the appropriate rating to be assigned, VA must take into
account the veteran's entire medical history and
circumstances.  See 38 C.F.R. � 4.1; Schafrath v. Derwinski,
1 Vet. App. 589, 592 (1995).

The Veteran's statements regarding the severity of his
service-connected disability are deemed competent with regard
to the description of symptoms.  Espiritu v. Derwinski, 2
Vet. App. 492 (1992).  However, these statements must be
considered with the clinical evidence in conjunction with the
appropriate rating criteria.

Consideration must be given to his possible entitlement to
"staged" ratings to compensate him for times since filing his
claim when this disability may have been more severe than at
other times during the course of his appeal.  Hart v.
Mansfield, 21 Vet. App. 505 (2007).

Entitlement to service connection for the Veteran's right eye
is being remanded for further development in this decision.
However, a decision on this issue is not needed prior to a
decision on the increased rating claim.

The Veteran is currently rated at 40 percent for anatomical
loss of the left eye under 38 C.F.R. � 4.84a, Diagnostic Code
6066.

VA examinations in March 2004 and May 2005 noted corrected
visual acuity of 20/20 in the Veteran's remaining right eye.
Consequently, the currently assigned 40 percent evaluation
under Diagnostic Code 6066 adequately reflects the current
level of impairment associated with the Veteran's
ophthalmological disability.  The Veteran does not meet the
schedular criteria for a higher rating, which would require
visual acuity of 20/50 in the right eye.  Nor is it shown
that the Veteran cannot wear an artificial eye in the left
eye socket, which would allow for an additional 10 percent
rating.

At no time during the pendency of this claim, has the
disability been more or less disabling than as currently
rated.  The preponderance of the evidence is against the
claim; there is no doubt to be resolved; and an increased
rating is not warranted.

ORDER

A rating in excess of 40 percent for anatomical loss of the
left eye is denied.

REMAND

"In a claim for disability compensation, VA will provide a
medical examination or obtain a medical opinion based upon a
review of the evidence of record if VA determines it is
necessary to decide the claim."  38 C.F.R. � 3.159(c)(4)(i).
The Veteran's representative, in written argument dated in
July 2009, stated that VA examinations are required prior to
a resolution of the Veteran's increased rating claim for
unilateral ptosis of the left eye and the secondary service
connection claims.

Ptosis, unilateral or bilateral, with pupil wholly obscured
is rated equivalent to central visual acuity of 5/200, with
pupil one-half or more obscured, as 20/100, and with less
interference with vision, as disfigurement.  38 C.F.R. �
4.84a, Diagnostic Code 6019.  Disfigurement is rated under
the criteria found in 38 C.F.R. � 4.118a, for disabilities of
the skin.  For disfigurement of the face, one characteristic
of disfigurement results in the grant of a 10 percent
disability rating.  Evidence that disfigurement of the head,
face, or neck has resulted in visible or palpable tissue loss
and either gross distortion or asymmetry of one feature or
paired set of features (nose, chin, forehead, eyes (including
eyelids), ears (auricles), cheeks, lips), or with two or
three characteristics of disfigurement warrants the award of
a 30 percent disability evaluation.  The next higher rating
of 50 percent requires evidence that disfigurement of the
head, face, or neck has caused visible or palpable tissue
loss and either gross distortion or asymmetry of two features
or paired sets of features (nose, chin, forehead, eyes
(including eyelids), ears (auricles), cheeks, lips) or with
four or five characteristics of disfigurement.  The highest
evaluation of 80 percent necessitates evidence that
disfigurement of the head, face, or neck has resulted in
visible or palpable tissue loss and either gross distortion
or asymmetry of three or more features or paired sets of
features (nose, chin, forehead, eyes (including eyelids),
ears (auricles), cheeks, lips) or with six or more
characteristics of disfigurement.  Diagnostic Code 7800.

Note (1) to Diagnostic Code 7800 states that the 8
characteristics of disfigurement are a scar 5 or more inches
(13 or more cm.) in length; a scar at least one-quarter inch
(0.6 cm.) wide at widest part; surface contour of a scar that
is elevated or depressed on palpation; a scar that is
adherent to underlying tissue; the skin is hypo-or hyper-
pigmented in an area exceeding six square inches (39 sq.
cm.); the skin texture is abnormal (irregular, atrophic,
shiny, scaly, etc.) in an area exceeding six square inches
(39 sq. cm.); the underlying soft tissue is missing in an
area exceeding six square inches (39 sq. cm.); and the skin
is indurated and inflexible in an area exceeding six square
inches (39 sq. cm.).

The examinations of record are inadequate to determine an
appropriate rating for the service-connected unilateral
ptosis of the left eye, as they do not report on the presence
and extent of any disfigurement.

The Veteran has not been provided examinations to determine
the nature of any right eye disability, headaches, sinus
disability, or acquired psychiatric disorder present, and
whether they were caused or aggravated by his service-
connected left eye disability.  Therefore, the Veteran must
be scheduled for appropriate VA examinations.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded a
dermatology examination to determine the
current nature and severity any
disfigurement related to his ptosis of
the left eye.  The entire claims file
must be made available to the physician
designated to examine the Veteran.  Color
photographs (unretouched) should be
taken, and all clinical findings should
be reported in detail.  The examiner
should specifically detail findings as to
any disfigurement or cosmetic defects
that are due to the Veteran's left eye
ptosis.  The examiner should:

a) Describe the size of each scar in
inches and centimeters; and specifically
indicate whether any scars disfigure the
Veteran's head and, if so, describe the
extent and location of the disfigurement;

b) Indicate whether the scars cause any
functional loss;

c) Of the following eight characteristics
of disfigurement, indicate which, if any,
are present:

i. scar 5 or more inches (13 centimeters)
in length;

ii. scar at least one-quarter inch wide
(0.6 centimeters) at its widest part;

iii. scar surface or contour elevated or
depressed on palpation;

iv. scar adherent to underlying tissue;

v. skin hypo- or hyper- pigmented in an
area exceeding 6 square inches (39 square
centimeters);

vi. skin texture abnormal (irregular,
atrophic, shiny, scaly, etc.) in an area
exceeding 6 square inches (39 square
centimeters);

vii. underlying soft tissue missing in an
area exceeding six square inches (39
square centimeters); and

viii. skin indurated and inflexible in an
area exceeding 6 square inches (39 square
centimeters).

The Veteran's claims folder, and a copy
of this remand, must be made available to
the examiner for review in connection
with the examination.

2.  Arrange for appropriate examinations
and opinions regarding the service
connection claims, including any special
studies and tests that may be warranted.
The examiners should comment on the
objective manifestations of any right eye
disability, headaches, sinus disability,
and an acquired psychiatric disorder
present, and opine as to whether it is at
least as likely as not that any of the
claimed disabilities are attributable to
his service-connected left eye
disability.  The claims folder should be
made available to the examiners prior to
the examinations.  All findings should be
reported in detail.

3.  Then readjudicate the claims.  If any
claim continues to be denied, send the
Veteran and his representative a
supplemental statement of the case and
give them time to respond.

The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2008).

______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: BARRY F BOHAN

disposition: remanded

text:
Citation Nr: 0930000
Decision Date: 08/11/09    Archive Date: 08/19/09

DOCKET NO.  08-22 631	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri

THE ISSUES

1.  Entitlement to service connection for bilateral hearing
loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a respiratory
disorder, to include pneumonia and chronic obstructive
pulmonary disease (COPD).

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

S. Dale, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1949 to January
1953.

The Veteran's claims for service connection for bilateral
hearing loss, tinnitus and pneumonia were denied in a
November 2007 RO rating decision of the Department of
Veterans Affairs Regional Office (RO) in St. Louis, Missouri
(the RO).
The Veteran expressed disagreement with that decision in
December 2007, and a Decision Review Officer (DRO) provided
the Veteran with a June 2008 statement of the case (SOC)
which was also unfavorable to the Veteran's claims.  An
appeal was perfected with the Veteran's submission of a
substantive appeal (VA Form 9) in July 2008.

In August 2009, the Board granted the Veteran's motion to
advance this appeal on its docket due to his advanced age.
See 38 C.F.R. � 20.900(c) (2008).

This appeal is REMANDED to the RO via the VA Appeals
Management Center (AMC) in Washington, DC.  VA will notify
the Veteran if further action is required on his part.

REMAND

After having carefully considered the matter, and for reasons
expressed immediately below, the Board believes that the
issues on appeal must be remanded for further evidentiary
development.

The Veteran presented for a VA audiological examination in
September 2007, at which time the examining audiologist noted
the Veteran's extensive history of noise exposure in service
and as a civilian and opined that she could not provide a
medical nexus opinion as to the Veteran's hearing loss or
tinnitus "without resort[ing] to mere speculation."  The
United States Court of Appeals for Veterans Claims has held
that medical opinions which are speculative, general or
inconclusive in nature are of no probative value.  See Obert
v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2
Vet. App. 609, 611 (1992); Beausoleil v. Brown, 8 Vet. App.
459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523
(1996).

Because the opinion of the September 2007 VA examiner is not
probative, an additional medical opinion addressing the
relationship between the Veteran's hearing problems and
military service is needed.

The medical evidence shows that the Veteran has been
diagnosed with COPD, chronic bronchitis and recurrent
pneumonia in December 2004 and July 2006.
The Veteran's service medical records reflect that he was
complained of pain and pressure in his chest in November
1950, and his December 1952 separation examination reflects
chronic colds.

The Court has held that, in situations in which there is
competent evidence of a current disability and evidence
indicating an association between the claimant's disability
and his active service, under 38 U.S.C.A. � 5103A VA is to
obtain a medical opinion as to whether there is a nexus
between that disability and his active service.  See Charles
v. Principi, 16 Vet. App. 370 (2002).  Under the
circumstances here presented, the Board believes that an
opinion is necessary in order to answer the question whether
the Veteran's current respiratory disorder is related to his
military service.

Accordingly, the case is REMANDED to the Veterans Benefits
Administration (VBA) for the following action:

1.  VBA should arrange for a medical
professional to review the Veteran's VA
claims folder and provide an opinion,
based on the Veteran's medical history,
as to whether it is as likely as not that
the Veteran's current bilateral hearing
loss and/or tinnitus are related to his
military service.  If audiological
examination of the Veteran and/or
diagnostic testing are necessary to
render an informed opinion, such should
be scheduled.  A report should be
prepared and associated with the
Veteran's VA claims folder.

2.  VBA should refer the Veteran's VA
claims folder to an appropriately
qualified medical professional, who
should render an opinion as to whether it
is as likely as not that any currently
diagnosed respiratory/pulmonary
disability is related to the Veteran's
military service, in particular the
complaints of pain and pressure in his
chest in November 1950 or the chronic
colds reported on the Veteran's December
1952 separation.  If the reviewer deems
it to be necessary, physical examination
and/or diagnostic testing of the Veteran
should be scheduled.  A report should be
prepared and associated with the
Veteran's VA claims folder.

3.  After the development requested above
has been completed to the extent
possible, and after undertaking any
additional development it deems
necessary, VBA should again review the
record and readjudicate the issues on
appeal.  If the decision remains
unfavorable to the Veteran, a
supplemental statement of the case (SSOC)
should be prepared.  The Veteran and his
representative should be provided with
the SSOC and an appropriate period of
time should be allowed for response.

The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded.  See
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 for
additional development or other appropriate action must be
handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B,
7112 (West Supp. 2008).

_________________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2008).


judge_norm: L HOWELL

disposition: granted

condition: hypertension

text: 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. 2009).

text:
Citation Nr: 0931000
Decision Date: 08/19/09    Archive Date: 08/27/09

DOCKET NO.  06-21 443	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia

THE ISSUES

1.  Entitlement to a compensable rating for bilateral hearing
loss prior to October 15, 2008.

2.  Entitlement to a rating in excess of 20 percent for
bilateral hearing loss since October 15, 2008.

3.  Entitlement to a rating in excess of 10 percent for
residuals of a left foot osteotomy with scar.

4.  Entitlement to a rating in excess of 10 percent for
hammer toes, hallux valgus and osteoarthritis in the great
toe of the right foot.

5.  Whether new and material evidence has been submitted in
order to reopen a claim for entitlement to service connection
for hypertension.

6.  Entitlement to service connection for sleep apnea, to
include as secondary to hypertension.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

B. Thomas Knope, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1980 to May 1983.

This matter is on appeal from the Atlanta, Georgia,
Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law
Judge in May 2009.  A transcript of the hearing is of record.

As a procedural matter, the Board notes that the Veteran
submitted private treatment records related to his feet, an
October 2008 VA examination, and a physician's note from June
2006 since the case was certified for appeal.  This evidence
was received after the last RO review and did not include a
waiver.

The Board has, accordingly, reviewed the additional evidence.
As to the treatment records, for the reasons discussed below,
the foot disability claims are being remanded for
development.  Additionally, the physician's note from June
2006 and the October 2008 VA examination were previously
considered by the RO.

Accordingly, the Board concludes that there is no prejudice
in proceeding with consideration of this case without
affording the RO an opportunity to review the evidence in
question.

Next, in his February 2009 Notice of Disagreement, the
Veteran stated that he wanted his benefits increased to 100
percent.  The Board construes this claim as one for total
disability compensation based on individual unemployability
(TDIU).  He also seeks an increased rating for his service-
connected tinnitus.  As these issues have not been
considered, the Board refers them to the RO for
consideration.

The issues of entitlement to a rating in excess of 10 percent
for residuals of a left foot osteotomy with scar and
entitlement to a rating in excess of 10 percent for hallux
valgus and osteoarthritis in the great toe of the right foot
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.

FINDINGS OF FACT

1.  Prior to July 2008, the Veteran's hearing loss was
manifested by no more than Level III in the right ear and
Level I in the left ear.

2.  Since July 2008, the Veteran's hearing loss has been
manifested by no more than Level VI in the right ear and
Level IV in the left ear.

3.  The RO denied the Veteran's claim for entitlement to
service connection for hypertension in May 1991 and again in
January 2003.  These rating decisions were not appealed and
became final one year later.

4.  The January 2003 rating decision is the last final denial
of the issue on appeal.

5.  In July 2005, the Veteran sought to reopen the claim.

6.  The evidence added to the record since the January 2003
rating decision does not relate to any unestablished facts
that are necessary to substantiate the claim, nor does it
raise the reasonable possibility of substantiating the
previously disallowed claim.

7.  A chronic disorder manifested by sleep apnea was not
noted in service; sleep apnea was not shown for many years
after service.  Sleep apnea is not related to service.

CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for bilateral
hearing loss prior to July 2008 have not been met.  38
U.S.C.A. �� 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp.
2009); 38 C.F.R. �� 3.102, 3.159, 4.85, 4.86, Diagnostic Code
(DC) 6100 (2008).

2.  The criteria for a rating of 20 percent, but no more, for
bilateral hearing loss since July 2008 have been met.  38
U.S.C.A. �� 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp.
2009); 38 C.F.R. �� 3.102, 3.159, 4.85, 4.86, DC 6100 (2008).

3.  The evidence received since the January 2003 rating
decision is not new and material, and the requirements to
reopen a claim of entitlement to service connection for
hypertension have not been met.  38 U.S.C.A. �� 5108,
5103(a), 5103A, 5107(b), 7105 (West 2002 & Supp. 2009);
38 C.F.R. �� 3.156, 3.159 (2008).

4.  Sleep apnea was not incurred or aggravated by active
service.  38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1131, 1154,
5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. ��
3.102, 3.159, 3.303 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the Veteran's
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 each claim.

Entitlement to an Increased Rating for Bilateral Hearing Loss

Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity.  Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability.  See 38 C.F.R. � 4.1 (2008).  Separate
diagnostic codes identify the various disabilities.  38
U.S.C.A. � 1155 (West 2002); 38 C.F.R. Part 4 (2008).

However, the Board has been directed to consider only those
factors contained wholly in the rating criteria.  See Massey
v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v.
Principi, 16 Vet. App. 436 (2002) (finding it appropriate to
consider factors outside the specific rating criteria in
determining level of occupational and social impairment).

Where there is a question as to which of two separate
evaluations shall be applied, the higher evaluation will be
assigned if the disability more closely approximates the
criteria required for that particular rating.  Otherwise, the
lower rating will be assigned.  38 C.F.R. � 4.7 (2008).
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding the
degree of disability, such doubt will be resolved in favor of
the Veteran.  38 C.F.R. � 4.3 (2008).

Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).  Nevertheless, where the evidence contains factual
findings that show a change in the severity of symptoms
during the course of the rating period on appeal, assignment
of staged ratings would be permissible.  See Hart v.
Mansfield, 21 Vet. App. 505 (2007).

In evaluating the extent of hearing loss, disability ratings
are derived by a mechanical application of the rating
schedule to the numeric designations assigned after
audiometric evaluations are performed.  Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss
disability evaluations range from noncompensable to 100
percent based on organic impairment of hearing acuity, as
measured by controlled speech discrimination tests in
conjunction with the average hearing threshold, and as
measured by pure tone audiometric tests in the frequencies
1,000, 2,000, 3,000 and 4,000 cycles per second.

The rating schedule for hearing loss establishes 11 auditory
acuity levels designated from Level I for essentially normal
hearing acuity, through Level XI for profound deafness.  VA
audiometric examinations are conducted using a controlled
speech discrimination test together with the results of a
pure tone audiometric test.  The horizontal lines in Table VI
(38 C.F.R. � 4.85) represent nine categories of the
percentage of discrimination based on the controlled speech
discrimination test.  The vertical columns in Table VI
represent nine categories of decibel loss based on the pure
tone audiometric test.

The numeric designation of impaired hearing (Levels I through
XI) is determined for each ear by intersecting the horizontal
row appropriate for the percentage of discrimination and the
vertical column appropriate to the pure tone decibel loss.

The percentage disability evaluation is found from Table VII
(38 C.F.R. � 4.85) by intersecting the horizontal column
appropriate for the numeric designation for the ear having
the better hearing acuity and the vertical  row appropriate
to the numeric designation level for the ear having the
poorer hearing acuity.  For example, if the better ear has a
numeric designation Level of "V" and the poorer ear has a
numeric designation Level of "VII," the percentage
evaluation is 30 percent.  38 C.F.R. �� 4.85(b), 4.87 (2008).

Additionally, under 38 C.F.R. � 4.86(a), when the pure tone
threshold at each of the four specified frequencies (1000,
2000, 3000, and 4000 Hertz) is 55 decibels or more, the
rating specialist will determine the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral.  Each ear
will be evaluated separately.

Under 38 C.F.R. � 4.86(b), when the pure tone threshold is 30
decibels or less at 1,000 hertz, and 70 decibels or more at
2,000 hertz, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results is the higher numeral.
That numeral will then be elevated to the next higher Roman
numeral.  Each ear will be evaluated separately.

Finally, the RO has increased the Veteran's disability
ratings during the course of this appeal.  The Court of
Appeals for Veterans' Claims has held that a rating decision
issued subsequent to a notice of disagreement (NOD) which
grants less than the maximum available rating does not
abrogate the pending appeal.  See AB v. Brown, 6 Vet. App.
35, 38 (1993); see also Corchado v. Derwinski, 1 Vet. App.
160 (1991).  Consequently, as the Veteran has not withdrawn
the appeal, it remains in appellate status.

Since October 15, 2008

The Veteran is currently rated at 20 percent for his
bilateral hearing loss, effective October 15, 2008, as a
result of a VA audiological examination which occurred at
that time.  Based on this examination, the Board concludes
that a rating in excess of 20 percent since that date is not
warranted.  The pure tone thresholds, in decibels, were as
follows:

HERTZ

1000
2000
3000
4000
AVG.
RIGHT
50
70
75
75
68
LEFT
40
70
75
70
64

Speech audiometry revealed speech recognition ability of 74
percent in the right ear and of 76 in the left ear.

After applying these average pure tone thresholds and speech
recognition percentages of Table VI of 38 C.F.R. � 4.85, they
indicate that he has Level VI hearing loss in the right ear
and Level IV hearing loss in the left ear.  When applying
these hearing loss levels to Table VII, the Board concludes
that a 20 percent disability rating is appropriate.
Therefore, since an exceptional pattern of hearing impairment
was not shown, a rating in excess of 20 percent since October
15, 2008 is not warranted.

Prior to October 15, 2008

Prior to October 15, 2008, the Veteran had a noncompensable
rating for his service-connected bilateral hearing loss.  At
the time his claim was submitted in April 2005, his hearing
thresholds were as follows:

HERTZ

1000
2000
3000
4000
AVG.
RIGHT
45
60
65
65
59
LEFT
35
55
60
60
53

Speech audiometry revealed speech recognition ability of 88
percent in the right ear and of 92 in the left ear.

After applying these average pure tone thresholds and speech
recognition percentages of Table VI of 38 C.F.R. � 4.85, they
indicate that he has Level III hearing loss in the right ear
and Level I hearing loss in the left ear.  Additionally, no
exceptional hearing impairment was shown.  Therefore, when
applying these hearing loss levels to Table VII, the Board
concludes that a 0 percent disability rating is appropriate.

The Veteran underwent another authorized audiological
evaluation in June 2006.  There, pure tone thresholds, in
decibels, were as follows:

HERTZ

1000
2000
3000
4000
AVG.
RIGHT
45
60
65
60
58
LEFT
25
40
45
50
40

Speech audiometry revealed speech recognition ability of 92
percent in each ear.

After applying these average pure tone thresholds and speech
recognition percentages of Table VI of 38 C.F.R. � 4.85, they
indicate that he has Level II hearing loss in the right ear
and Level I hearing loss in the left ear.  Additionally, no
exceptional hearing impairment was shown.  Therefore, when
applying these hearing loss levels to Table VII, the Board
concludes that, as of June 2006, a 0 percent disability
rating is appropriate.

The Board notes that the October 2008 VA audiological
examination was scheduled in response to a June 2008 VA
audiological examination, where the RO believed the results
to be inaccurate.  There, the pure tone thresholds, in
decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
45
70
65
65
61
LEFT
35
60
65
60
55

Speech audiometry revealed speech recognition ability of 48
percent in each ear.

Given that the Veteran's speech recognition scores were so
significantly less than previously recorded, the RO concluded
that these results were likely inaccurate, and has discounted
the results.

Additionally, the Veteran's VA outpatient treatment records
indicate that he underwent another audiological examination
in July 2008.  While the pure tone thresholds are not listed,
his speech recognition scores were 76 percent in the right
ear and 72 percent in the left.  Considering that the speech
recognition scores in July and October 2008 were consistent,
the Board concludes that the results from June 2008 do not
accurately reflect his hearing impairment.

However, even though the pure tone thresholds from July 2008
are not in the claims file, it can be presumed that they
would have been very similar to the pure tone thresholds
exhibited only three months later in October 2008.

Given the short amount of time between the two examinations,
and the absence of any significant noise exposure in the
meantime, the Board concludes that a 20 percent rating, but
no more, is warranted from July 2008, the date of the VA
examination.

The Board has also considered statements by the Veteran, his
spouse and friends that his hearing loss has gotten worse.
In rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant.  See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.
The former is a legal concept determining whether testimony
may be heard and considered by the trier of fact, while the
latter is a factual determination going to the probative
value of the evidence to be made after the evidence has been
admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno
v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v.
Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may
affect the credibility of testimony, it does not affect
competency to testify").

In this case, the Veteran is competent to report symptoms
because this requires only personal knowledge as it comes to
him through his senses.  Layno, 6 Vet. App. at 470.  He is
not, however, competent to identify a specific level of
disability for sensorineural hearing loss-according to the
appropriate diagnostic codes.  See Robinson v. Shinseki, 557
F.3d 1355 (2009).

Such competent evidence-concerning the nature and extent of
the Veteran's hearing loss-has been provided by the medical
personnel who have examined him during the current appeal and
who have rendered pertinent opinions in conjunction with the
evaluations.  The medical findings (as provided in the
examination reports) directly address the criteria under
which these disabilities are evaluated.

As such, the Board finds these records to be more probative
than the Veteran's subjective evidence of complaints of
increased symptomatology.  See Cartright 2 Vet. App. at 25.

The Board has further considered the provisions of 38 C.F.R.
� 3.321(b)(1) (2008) but finds that the evidence does not
show that the Veteran's bilateral hearing loss has caused
marked interference with employment beyond that contemplated
by the schedule for rating disabilities, necessitated
frequent periods of hospitalization, or otherwise renders
impractical the application of the regular schedular
standards.

The Board notes that, in Martinak v. Nicholson, 21 Vet. App.
447, 455 (2007), the 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's rationale involved the
potential application of 38 C.F.R. � 3.321(b) 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 extra-schedular rating is warranted.  Instead
VA audiologists must describe the effect of a hearing
disability on a Veteran's occupational functioning and daily
activities.  Id.

In this case, the Veteran stated at the October 2008 VA
examination that he had difficulty understanding other people
when they spoke.  In June 2008, he stated that he wears
hearing aids, but he had trouble understanding people even
when he wears them.  At the June 2005 VA examination, he
mentioned similar symptoms, but it was also noted that this
disability had not resulted in loss of work.

In view of these statements, the Board finds that the
functional effects of his hearing loss disability are
adequately addressed in the record and are sufficient for the
Board to consider whether referral for an extra-schedular
rating is warranted under 38 C.F.R. � 3.321(b).

However, given that the evidence indicates that his hearing
loss has not caused him to miss work or that he has been
hospitalized for this disability, a referral for an
extraschedular evaluation under the provisions of 38 C.F.R.
� 3.321(b)(1) is not warranted.  Bagwell v. Brown, 9 Vet.
App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

In sum, after a careful review of the evidence of record, the
Board finds that a 20 percent rating, but no higher, is
warranted since July 2008.  However, a compensable rating
prior to July 2008 is not warranted.

New and Material Evidence

In order for evidence to be sufficient to reopen a previously
disallowed claim, it must be both new and material.  If the
evidence is new, but not material, the inquiry ends and the
claim cannot be reopened.  See Smith v. West, 12 Vet. App.
312, 314 (1999).  If it is determined that new and material
evidence has been submitted, the claim must be reopened.
Manio v. Derwinski, 1 Vet. App. 140 (1991).

Under the relevant regulation, "new" evidence is defined as
evidence not previously submitted to agency decision-makers.
"Material" evidence means existing evidence that, by itself
or when considered with previous evidence of record, relates
to an unestablished fact necessary to substantiate the claim.

When determining whether the claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992).  However, lay
assertions of medical causation cannot serve as the predicate
to reopen a claim under 38 U.S.C.A. � 5108.  See Moray v.
Brown, 5 Vet. App. 211, 214 (1993).

New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim.  38 C.F.R. � 3.156(a).  If it finds that the submitted
evidence is new and material, VA may then proceed to evaluate
the merits of the claim on the basis of all evidence of
record, but only after ensuring that the duty to assist the
Veteran in developing the facts necessary for the claim has
been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999);
but see 38 U.S.C.A. � 5103A (eliminates the concept of a
well-grounded claim).

Because the Board has the jurisdictional responsibility to
consider whether it was proper to reopen the claim,
regardless of the RO's determination on the question of
reopening, the Board will determine whether new and material
evidence has been received and, if so, consider entitlement
to service connection on the merits.  Jackson v. Principi,
265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83
F.3d 1380 (Fed. Cir. 1996).

The Veteran is claiming entitlement to service connection for
hypertension.  This issue was first considered and denied by
the RO in May 1991, on the basis that there was no diagnosis
of hypertension while in service or within one year after
service.  He did not appeal the RO's decision and, one year
later, the decision became final.

In November 2001 the Veteran filed a new claim for
entitlement to service connection for hypertension and, in
January 2003, the RO again denied the claim on the basis that
no new and material evidence was submitted indicating that
his hypertension was incurred while in service or within one
year following active duty.  This decision also went
unappealed, and became final one year later.

In July 2005, the Veteran again filed a claim for entitlement
to service connection for hypertension.  In November 2005, RO
denied this claim on the basis that the evidence submitted,
while new, did not address whether he had hypertension during
active duty or within one year thereafter.

The evidence of record at the time of the May 1991 decision
included the Veteran's service treatment records and VA
examinations from August 1983 and January 1991.

Since the RO's most recent final decision on this issue, the
Veteran has submitted an audiogram from April 2005, VA
examinations from June and August 2005, June 2006, and June
and October 2008, sleep disorder consultations from February
and July 1995, private physicians' letters from August 2005
and June 2006, and VA outpatient treatment records from March
2006 to October 2008.

After reviewing the evidence submitted since the last final
denial, however, the Board concludes that, while the evidence
is new in that it has not been previously reviewed by the RO,
it is not material to the question of incurrence of
hypertension during or within one year following active duty
service.

Specifically, much of the new evidence submitted, such as the
audiogram and the sleep disorder consultation notes, does not
pertain to the Veteran's hypertension claim.  Moreover, the
VA examinations pertain to the other claims he has on appeal.

The private physician's letter from August 2005 noted that
the Veteran was taking medication to control his hypertension
and the June 2006 letter noted a relationship between sleep
apnea and hypertension.  However, neither letter indicated
that he had hypertension during active duty service or within
one year following active duty.

Finally, the VA outpatient treatment records from March 2006
to October 2008 are notable for a notation in October 2007
that the Veteran has had hypertension for the past twenty
years.  While this statement suggests symptoms of
hypertension as early as 1987, it does not show evidence of
hypertension during active duty service or within one year
following active duty.

In addition to the clinical evidence, the Veteran has
submitted additional statements, as well as statements from
friends and family members.  Specifically, in statements from
July and August 2005, he maintained that he was told at a
military examination that he had high blood pressure.  In
December 2008, he attributed his hypertension to his
alcoholism while in service.  However, none of these
statements relate to evidence that has not already been
considered by the RO.

Moreover, even if the statements disclosed new information,
such assertions would not be sufficient to reopen the claim,
as a lay person is not competent to offer an opinion that
requires medical expertise.  Consequently the statements do
not constitute new and material evidence to reopen the claim.
Moray v. Brown, 5 Vet. App. 211, 214 (1995) (holding that lay
assertions of medical causation cannot serve as a predicate
to reopen a previously denied claim).

As a result, the Board finds that none of the current
evidence submitted by the Veteran since the last final rating
decision is new and material under 38 C.F.R. � 3.156(a).
Thus, the Veteran's claim to reopen is denied.

Entitlement to Service Connection for Sleep Apnea

Under the relevant laws and regulations, service connection
may be granted for a disability resulting from disease or
injury incurred in or aggravated by active service.  38
U.S.C.A. � 1131 (West 2002).  If a chronic disease is shown
in service, subsequent manifestations of the same chronic
disease at any later date, however remote, may be service
connected, unless clearly attributable to intercurrent
causes.  38 C.F.R. � 3.303(b) (2008).  However, continuity of
symptoms is required where a condition in service is noted
but is not, in fact, chronic or where a diagnosis of
chronicity may be legitimately questioned.  38 C.F.R. �
3.303(b) (2008).

Further, service connection may also 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 U.S.C.A. � 1113(b) (West
2002); 38 C.F.R. � 3.303(d) (2008).  The Board must determine
whether the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either case, or
whether the preponderance of the evidence is against the
claim, in which case, service connection must be denied.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

	In addition to the regulations cited above, service
connection is warranted for a disability which is aggravated
by, proximately due to, or the result of a service-connected
disease or injury.  38 C.F.R. � 3.310 (2008).  Any additional
impairment of earning capacity resulting from an already
service-connected condition, regardless of whether or not the
additional impairment is itself a separate disease or injury
caused by the service-connected condition, should also be
compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When
service connection is thus established for a secondary
condition, the secondary condition shall be considered a part
of the original condition.  Id.

	The Board notes that 38 C.F.R. � 3.310 was amended effective
October 10, 2006.  Under the revised � 3.310(b) (the existing
provision at 38 C.F.R. � 3.310(b) was moved to sub-section
(c)), any increase in severity of a nonservice-connected
disease or injury proximately due to or the result of a
service-connected disease or injury, and not due to the
natural progress of the disease, will be service-connected.
As the Veteran filed his claim in June 2005, the amendment is
not applicable to the current claim.

	Here, the Veteran has asserted that his sleep apnea is
related to his hypertension.  However, for the reasons
discussed above, he is not service-connected for
hypertension.  Therefore, an evaluation as to whether his
sleep apnea may be secondary to hypertension is not needed,
and the Board will consider the claim on a direct basis only.

	Service treatment records reflect no complaints of, treatment
for, or a diagnosis related to sleep apnea or any symptoms
reasonably attributed thereto.  Specifically, he was the
Veteran was never diagnosed with the disorder, nor were
symptoms such as snoring, excessive daytime drowsiness or
breathing cessation at night complained of or noted in
service.

	Next, post-service evidence does not reflect sleep apnea
symptomatology for many years after service discharge.
Specifically, the first indication of such a disorder was not
until February 1995, where he was observed to have disordered
sleep and symptoms of sleep apnea.  However, the evaluating
physician noted that there were complicating factors, such as
a deviated nasal septum and a history of gastroesophageal
reflux disease (GERD).  Therefore, sleep apnea was not
reported for more than 10 years after service.

	In addition to the absence of documented post-service
symptomatology for many years, the evidence includes the
Veteran's statements and sworn testimony, as well as a
statement from his daughter, asserting continuity of
symptoms.  The Board acknowledges that lay evidence
concerning continuity of symptoms after service, if credible,
is ultimately competent, regardless of the lack of
contemporaneous medical evidence.  Buchanan v. Nicholson, 451
F.3d 1331 (Fed. Cir. 2006).

	In rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant.  See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990).

	Competency of evidence differs from weight and credibility.
The former is a legal concept determining whether testimony
may be heard and considered by the trier of fact, while the
latter is a factual determination going to the probative
value of the evidence to be made after the evidence has been
admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno
v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v.
Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may
affect the credibility of testimony, it does not affect
competency to testify").

	In this case, the Veteran is competent to report symptoms
because this requires only personal knowledge as it comes to
him through his senses.  Layno, 6 Vet. App. at 470.  Here, he
has stated that he experienced symptoms such as drowsiness
while on active duty and since that time.

	In determining whether statements submitted by a veteran are
credible, the Board may consider internal consistency, facial
plausibility, and consistency with other evidence submitted
on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498
(1995).  The Board is not required to accept an appellant's
uncorroborated account of his active service experiences.
Wood v. Derwinski, 1 Vet. App. 190 (1991).

	In this case, the Board finds that the Veteran's reported
history of continued symptomatology since active service,
while competent, is nonetheless not credible.
	Significantly, the Board finds that the Veteran's reported
history of sleep apnea since active service is inconsistent
with the other evidence of record.  Indeed, while he stated
that his disorder began in service, the service treatment
records do not indicate such symptoms.

	Additionally, the Board emphasizes the multi-year gap between
discharge from active duty service (1983) and initial
reported symptoms related to sleep apnea in 1995.  See Maxson
v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy
period of absence of medical complaints for condition can be
considered as a factor in resolving claim); see also Mense v.
Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's
denial of service connection where veteran failed to account
for lengthy time period between service and initial symptoms
of disability).

	The Board has weighed the Veteran's statements as to
continuity of symptomatology against the lack of clinical
evidence for many years and finds his recollections as to
symptoms experienced in the past, made in connection with a
claim for benefits, to be less probative.  Therefore,
continuity has not here been established, either through the
competent evidence or through his statements.

	Next, service connection may be granted when the evidence
establishes a medical nexus between active duty service and
current complaints.  In this case, the Board finds that the
weight of the competent evidence does not attribute the
Veteran's sleep apnea to active duty, despite his contentions
to the contrary.  However, none of the evidence submitted by
the Veteran indicates a link between his sleep apnea and his
active duty service.

The Board has also considered the Veteran's statements and
sworn testimony, as well as his daughter's statement,
asserting a nexus between his currently-diagnosed disorder
and active duty service.  While the Board reiterates that the
Veteran is competent to report symptoms as they come to him
through his senses and his daughter is competent to report
her observations, sleep apnea is not the type of disorder
that they may provide competent evidence on questions of
etiology or diagnosis.  See Robinson v. Shinseki, 557 F.3d
1355 (2009).

On the other hand, such competent evidence has been provided
by the medical personnel who have examined the Veteran during
the current appeal and by service records obtained and
associated with the claims file.  Here, the Board attaches
greater probative weight to the clinical findings than to his
statements.  See Cartright, 2 Vet. App. at 25.

In light of the above discussion, the Board concludes that
the preponderance of the evidence is against the claim for
service connection and there is no doubt to be otherwise
resolved.  As such, the appeal is denied.

Veterans Claims Assistance Act of 2000

Finally, as provided for by the Veterans Claims Assistance
Act of 2000 (VCAA), 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. 2009); 38 C.F.R. �� 3.102, 3.156(a), 3.159 (as
amended), 3.326(a) (2008).

Proper notice from VA must inform the claimant of any
information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).
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).

When VCAA notice is delinquent or erroneous, the "rule of
prejudicial error" applies.  See 38 U.S.C.A. � 7261(b)(2).
In the event that a VA notice error occurs regarding the
information or evidence necessary to substantiate a claim, VA
bears the burden to show that the error was harmless.
However, the appellant bears the burden of showing harm when
not notified whether the necessary information or evidence is
expected to be obtained by VA or provided by the appellant.
See Shinseki v. Sanders, 556 U.S. ___ (2009).

In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).  Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded.  Id. at 486.

	Concerning the hypertension claim, in claims to reopen based
on new and material evidence, VA must both notify a claimant
of the evidence and information that is necessary to reopen
the claim and of the evidence and information that is
necessary to establish entitlement to the underlying claim
for the benefit that is being sought.  Kent v. Nicholson, 20
Vet. App. 1 (2006).

	To satisfy this requirement, VA is required to look at the
bases for the denial in the prior decision and to provide the
claimant with a notice letter that describes what evidence
would be necessary to substantiate those elements required to
establish service connection that were found insufficient in
the previous denial.

	In this case, the notice letter provided to the Veteran in
August 2005 included the criteria for reopening a previously
denied claim and information concerning why the claim was
previously denied.  Consequently, the Board finds that
adequate notice has been provided, as he was informed about
what evidence was necessary to substantiate the elements
required to establish service connection that were found
insufficient in the previous denial.

Concerning the Veteran's claim for entitlement to service
connection for sleep apnea, the VCAA duty to notify was
satisfied by way of a letter sent to the Veteran in July 2005
that fully addressed all notice elements and was sent prior
to the initial RO decision in this matter.  The letter
informed him of what evidence was required to substantiate
the claim and of his and VA's respective duties for obtaining
evidence.

With respect to the Dingess requirements, the Veteran was not
provided with notice of the type of evidence necessary to
establish a disability rating or effective date for the
disability on appeal.  However, there is no prejudice in
issuing a final decision because the preponderance of the
evidence is against the claim for service connection.  Any
questions as to the appropriate disability rating or
effective date to be assigned are moot.

Finally, regarding the increased-compensation claim, �
5103(a) requires, at a minimum, that VA notify the claimant
that, to substantiate a claim, the medical or lay evidence
must show a worsening or increase in severity of the
disability, and the effect that such worsening or increase
has on the claimant's employment and daily life.  Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008).

Further, if the diagnostic code under which the claimant is
rated contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on
employment and daily life (such as a specific measurement or
test result), VA must provide at least general notice of that
requirement.  VA must also provide examples of the types of
medical and lay evidence that the claimant may submit (or ask
the Secretary to obtain) that are relevant to establishing
entitlement to increased compensation.  Id.

In this case, a letter satisfying the notice requirements
under 38 C.F.R. � 3.159(b)(1) was sent to the Veteran in
April 2005, prior to the initial RO decision that is the
subject of this appeal.  The letter informed him of what
evidence was required to substantiate the claim and of his
and VA's respective duties for obtaining evidence.

Further, the April 2005 letter, in conjunction with a letter
sent in April 2008 collectively satisfy the requirements of
Vazquez-Flores.  Specifically, the April 2005 letter notified
the claimant that, to substantiate his claim, the medical or
lay evidence must show a worsening or increase in severity of
the disability and an effect on daily living.  The April 2008
letter provided him with the correct diagnostic criteria used
to evaluate a disability for VA compensation purposes.

After the April 2008 letter was provided, the claim was
subsequently readjudicated, and a supplemental statement of
the case was issued in November 2008.  Under these
circumstances, the Board finds that the notification
requirements of the VCAA have been satisfied as to both
timing and content.

Next, VA has a duty to assist a veteran in the development of
the claim.  This duty includes assisting him or her in the
procurement of service treatment records and other pertinent
records, and providing an examination when necessary.  See
38 U.S.C.A. � 5103A (West 2002); 38 C.F.R. � 3.159 (2008).

In determining whether a medical examination be provided or
medical opinion obtained, there are four factors to consider:
(1) competent evidence of a current disability or persistent
or recurrent symptoms of a disability; (2) evidence
establishing an in-service event, injury, or disease, or
manifestations during the presumptive period; (3) an
indication that the disability or symptoms may be associated
with service; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim.

With respect to the third factor, the types of evidence that
"indicate" that a current disorder "may be associated"
with service include, but are not limited to, medical
evidence that suggests a nexus but is too equivocal or
lacking in specificity to support a decision on the merits,
or credible evidence of continuity of symptomatology such as
pain or other symptoms capable of lay observation.  McLendon
v. Nicholson, 20 Vet. App. 79 (2006).

After a careful review of the file, 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).
First, the RO has obtained the Veteran's service treatment
records and VA outpatient treatment records.

Additionally, the Veteran submitted private treatment
records, as well as his own statements and statements from
family members.  Moreover, he was provided an opportunity to
set forth his contentions during the hearing before the
undersigned Veterans Law Judge in May 2009.  Next, the RO
obtained numerous VA medical examinations pertinent to the
issues on appeal.

While a VA examination was not obtained for sleep apnea, the
Board finds that a VA examination is not warranted.  Given
the absence of in-service evidence of chronic manifestations
of this disorder on appeal, the absence of identified
symptomatology for many years after separation, and no
competent evidence of a nexus between service and the
Veteran's claim, a remand for a VA examination would unduly
delay resolution.  Therefore, the available records and
medical evidence have been obtained in order to make an
adequate determination as to this claim.

Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claims that has not been obtained.
Hence, no further notice or assistance is required to fulfill
VA's duty to assist in the development of the claims.  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

A compensable rating for bilateral hearing loss prior to July
2008 is denied.

A 20 percent rating, but no more, for bilateral hearing loss
since July 2008 is granted, subject to governing criteria
applicable to the payment of monetary benefits.

New and material evidence having not been received, the
Veteran's application to reopen a claim of entitlement to
service connection for hypertension is denied.

Service connection for sleep apnea, to include as secondary
to hypertension, is denied.

REMAND

With respect to the Veteran's August 2008 claim for a rating
in excess of 10 percent for residuals of a left foot
osteotomy with scar and a rating in excess of 10 percent for
hammer toes, hallux valgus and osteoarthritis in the great
toe of the right foot, which were both denied in January
2009, a Notice of Disagreement (NOD) was submitted in
February 2009.  However, no SOC was issued in response to
this NOD.

In this case, the proper action is to REMAND the issue to the
RO for appropriate action.  See Manlincon v. West, 12 Vet.
App. 238, 240-41 (1999) ("[t]hus, the next step was for the
RO to issue an SOC on the denial of the . . . claim, and the
Board should have remanded that issue to the RO, not referred
it there, for issuance of that SOC").

Accordingly, the case is REMANDED for the following actions:

1.  Issue an SOC on the issues of
entitlement to service connection for a
rating in excess of 10 percent for
residuals of a left foot osteotomy with
scar and a rating in excess of 10 percent
for hammer toes, hallux valgus and
osteoarthritis in the great toe of the
right foot.

2.  The Veteran and his representative
should be clearly advised of the need to
file a substantive appeal if he wishes to
complete an appeal from that
determination.  If an appeal is
perfected, then the case should be
returned to the Board for further
appellate consideration, as appropriate.

The appellant has the right to submit additional evidence and
argument on the 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. 2009).

______________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs