judge_norm: J A MARKEY

condition: back

text:
Citation Nr: 1206000
Decision Date: 02/16/12    Archive Date: 02/23/12

DOCKET NO. 05-24 568	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for dizziness.

3. Entitlement to service connection for lumbar degenerative disk disease.

REPRESENTATION

Appellant represented by:	AMVETS

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Schechter, Counsel

INTRODUCTION

The Veteran served on active military duty from August 1966 to July 1968.

The appeal comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In June 2010 the Veteran testified before the undersigned at a Travel Board hearing conducted at the RO. A transcript of that hearing is contained in the claims file.

The Board in September 2010 remanded the appealed claims for additional development, and they now return to the Board for further review.

The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board previously referred this issue in its September 2010 Decision and Remand, but the claims file does not reflect AOJ action on the issue since that time.

FINDINGS OF FACT

1. The competent and probative evidence of record preponderates against hearing loss of either ear having developed in service or otherwise being causally related to service.

2. The evidentiary record does not support the presence of sensorineural hearing loss of either ear to a disabling degree within the first post-service year.

3. The competent and probative evidence of record preponderates against dizziness having developed in service or otherwise being causally related to service.

4. The evidentiary record does not support the presence of neurogenic dizziness to a disabling degree within the first post-service year.

5. The competent and probative evidence of record preponderates against lumbar degenerative disk disease having developed in service or otherwise being causally related to service.

6. The evidentiary record does not support the presence of arthritis of the lumbar spine to a disabling degree within the first post-service year.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. �� 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.303, 3.307, 3.309 (2011).

2. The criteria for service connection for dizziness are not met. 38 U.S.C.A. �� 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.303, 3.307, 3.309 (2011).

3. The criteria for service connection for lumbar degenerative disk disease are not met. 38 U.S.C.A. �� 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.303, 3.307, 3.309 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. � 3.159(b)(1) (2010). This notice must be provided prior to an initial 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). In addition, the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.

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

The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, nor, as discussed herein, has the Board identified any.

VA has fulfilled the above requirements in this case for the claims for service connection for bilateral hearing loss, dizziness, and lumbar degenerative disk disease. A VCAA notice letter was sent in January 2004, prior to the RO's initial adjudication of the claims in April 2004. This VCAA letter informed the Veteran of the notice and duty-to-assist provisions of the VCAA, of the bases of review, and of the information and evidence necessary to substantiate the claims. He was also told by this letter that it was ultimately his responsibility to see that pertinent evidence not in Federal possession is obtained.

The Veteran was not afforded a further VCAA letter, and hence did not have a VCAA letter afforded him which specifically addressed Dingess-type notice, though development issues were additionally addressed in recitation of regulatory provisions within a March 2005 SOC and a November 2011 SSOC. To whatever extent Dingess-type notice may have been deficient in this case, such deficiency would be harmless and moot, because the claims for service connection herein adjudicated are herein denied.

The January 2004 VCAA letter also requested that the Veteran advise of any VA and private medical sources of evidence pertinent to his claims, and that he provide necessary authorization to obtain those records. It also requested evidence and information about treatment after service, in support of the claims. The Veteran has responsively advised of VA and private treatment subsequent to service. On that basis VA treatment records and some private records, as well as service treatment records (STRs) and service examination records, were obtained and associated with the claims file.

The Veteran was appropriately informed of records obtained, including by the appealed rating decision, an SOC, and SSOC. He was thus, by implication, also informed of records not obtained. He was also adequately informed of the importance of obtaining all relevant records, and of his ultimate responsibility to see that records are obtained in furtherance of his claims. In the absence of any report or indication of additional records not yet obtained relevant to the appealed claims, VA need not assist the Veteran in soliciting any additional records and need not seek to obtain any for association with the claims file prior to the Board's adjudication of the claims adjudicated herein.

As delineated in 38 C.F.R. � 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when a veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the veteran indicates that the claimed disability or symptoms may be associated with service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Veteran was afforded an initial audiology examination for compensation purposes, and an addendum examination in August 2004 after blocked cerumen (ear wax) was cleared.

Pursuant to the Board's September 2010 Remand, the Veteran was afforded VA examinations in October 2010 addressing his claimed hearing loss, dizziness, and lumbar degenerative disk disease. The Board finds that the requirement of an opportunity of a VA examination as required by 38 C.F.R. � 3.159(c)(4), was thereby satisfied for all the appealed claims. These reports, taken together, provided informed opinions based on the record, including past treatment records and examinations and tests conducted, and the Veteran's self-report of history and symptoms. These examinations yielded the conclusion that the Veteran's bilateral hearing loss, dizziness (to the extent present), and lumbar degenerative disk disease were not causally related to service. The Board finds that these medical conclusions, taken together with the balance of the evidence of record, are adequate for the Board's adjudication herein. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examinations provided sufficient detail, and supported their conclusion with analyses fully supported by review of the evidence presented, which analyses are readily weighed against contrary evidence. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Further, the evidence so considered was sufficient and encompassed the evidence of record. Id. The Board accordingly concludes that no further examination is required to support the Board's adjudication of the claims for service connection for bilateral hearing loss, dizziness, and lumbar degenerative disk disease.

Based on the evidentiary development undertaken, inclusive of obtaining indicated treatment records as well as the above-noted VA examinations for compensation purposes, the Board also finds that the development required by the September 2010 Board remand has been substantially completed. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008).

Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims adjudicated herein. 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, supra.

Any VA development assistance duty under the VCAA to seek to obtain indicated pertinent records has been fulfilled. Neither the Veteran nor his representative has presented any avenues of evidentiary development presenting a reasonable possibility of furthering the claim which the RO or Appeals Management Center (AMC) has not pursued by query. Hence, the case presents no reasonable possibility that additional evidentiary requests would further the claim being decided herein. 38 U.S.C.A. � 5103A (a)(2); 38 C.F.R. � 3.159.

The Veteran addressed his claims by statements and testimony, including at a hearing conducted before the undersigned Veterans Law Judge in June 2010. There has been no expressed indication that the Veteran desires a further opportunity to address his claims adjudicated herein.

In summary, in this case, with regard to the service connection claims herein adjudicated, the Board finds that any error in notice and development assistance cannot "reasonably affect the outcome of the case," and hence will not affect "the essential fairness of the [adjudication]" for the service connection claims at issue on appeal. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

In view of the foregoing, the Board finds that all notification and development actions needed to render a decision on the Veteran's claims on appeal herein adjudicated have been accomplished.

II. General Laws and Regulations Governing Claims
for Service Connection

Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303 (2011).

With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. � 3.303(b) . For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id.

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. � 3.303(b). 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 C.F.R. � 3.303(d) . A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993).

Certain chronic diseases, including organic diseases of the nervous system (such as sensorineural hearing loss and neurogenic dizziness) and arthritis, may be presumed to have been incurred during active military service if it is manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. �� 1101, 1110, 1112 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.307, 3.309 (2011).

38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. � 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet).

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. � 7104(a) (West 2002). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a disability when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, supra; see also Buchanan v. Nicholson, supra ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

III. Claims for Service Connection for Bilateral
Hearing Loss and Dizziness

The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. � 3.385 (2011).

At his hearing before the undersigned in June 2010, the Veteran testified that he had noise exposure in service firing big guns, without the use of hearing protection. He testified that following service he worked for a mining company, but he did not having as loud noise exposure then as in service, despite having worked in mines, and in his mining work he used hearing protection. In VA examinations he asserted that the guns he fired in service were 100 and 150 mm howitzers. At his hearing he testified that his job in service was to assist in the firing of these weapons by loading 55 pound projectiles onto a tray and lifting the tray, whereupon another soldier loaded the weapon into the gun and the gun was fired. At his hearing he testified that they loaded a projectile onto the tray approximately every 20 to 25 seconds when firing the weapon.

Also at the hearing, the Veteran asserted that he had a lot of hearing loss upon getting out of service, but he failed to explain how this was not reflected upon the service separation examination. He has provided no evidence of hearing loss, tinnitus, or dizziness either from service or for an interval of in excess of 30 years following service.

Relevant audiometric measurements reflected in the claims file, both in service and post service, are as follows:

HERTZ

500
1000
2000
3000
4000
Average
1000 - 4000
February 1966 pre-induction examination (converted ASA units to ISO)
RIGHT
15
5
5
-
10
-

LEFT
10
5
15
-
25
-
July 1968 Separation examination (ISO units assumed)
RIGHT
0
0
0
0
5
-

LEFT
0
0
5
5
0
-
VA examination August 2004
RIGHT
10
10
50
75
75
52.5

LEFT
5
5
60
85
95
61.25
VA examination October 2010
RIGHT
10
10
60
75
75
55

LEFT
15
10
70
100
95
68.75

Speech recognition scores in August 2004 were 92 percent in the right ear and 84 percent in the left ear. Speech recognition scores in October 2010 were 86 percent in the right ear and 82 percent in the left ear.

At a VA treatment audiology consultation in January 2003, the Veteran reported having noise exposure to artillery weapons while serving in the military. He also then reported that following service he worked for 30 years for a mining company performing maintenance work on mining equipment.

Upon an August 2004 addendum VA audiology examination (necessitated because a prior examination could not obtain valid audiometric readings due to ear cerumen that needed to be cleared), the examiner found moderate to profound sensorineural hearing loss in the right ear above 1500 hertz, and moderately severe to profound sensorineural hearing loss in the left ear above 1500 hertz. Based on both induction and separation examinations showing normal hearing bilaterally, notwithstanding a noted significant unprotected artillery noise exposure in Vietnam, the examiner concluded that it was not at least as likely as not that the Veteran's current hearing loss was caused by military noise exposure.

Upon an October 2010 VA audiology examination, the examiner found in the right ear normal low frequency hearing loss sloping to moderately severe to severe mid and high frequency hearing loss. The examiner found in the left ear normal hearing in low frequencies sloping to severe to profound mid and high frequency hearing loss. The examiner diagnosed normal to severe sensorineural hearing loss in the right ear and normal to profound sensorineural hearing loss in the left ear. The examiner opined that the Veteran's hearing loss was not at least as likely as not related to service, based on the absence of evidence of hearing loss upon service testing including upon service separation, and the absence of significant threshold shift upon separation examination. The examiner further noted the Veteran's denial of hearing loss upon service separation report of medical history. While noting the Veteran's self-reported history of acoustic trauma in service, the examiner concluded that based on the evidence presented it was not at least as likely as not that the Veteran's current bilateral hearing loss was related to service. The examiner further concluded that the Veteran's current hearing loss was likely related to noise exposure following service including during the Veteran's work in mining, notwithstanding the Veteran's contrary contentions.

The October 2010 VA audiology examiner also concluded that it was not at least as likely as not that the Veteran's self-reported intermittent dizziness was related to his acoustic trauma in service. The audiologist explained that the dizziness as described were not symptoms of inner ear dizziness such as would be related to past acoustic trauma. The examiner further bolstered his opinion by noting that the Veteran informed that his dizziness did not have onset in service or shortly after service, but rather that in began in approximately the past 10 years. The examiner noted that the dizziness as described by the Veteran was brief and associated with quick positional changes, only occurring when he stood up quickly.

A VA physician's assistant in October 2010 also evaluated the Veteran for his claimed dizziness. She was not able to induce the dizziness upon examination. She further noted that a hypotensive episode productive of dizziness was not present upon examination. She did not that the Veteran reportedly had noise exposure in the military as well as occupationally and recreationally.

The October 2010 VA audiology examiner additionally noted that there was normal middle ear function in both ears as evidenced by tympanometry and otoscopy.

At his June 2010 hearing before the undersigned, the Veteran testified that his tinnitus began when he became a cannoneer in service, whereas at his August 2004 VA addendum hearing loss examination for compensation purposes he reported that his tinnitus had not begun while he was in the service.

The record reflects that the Veteran has conceded hunting recreationally occasionally post service. However, he has contended that he has used hearing protection post service, including in occupational settings.

The Board concludes that the October 2010 VA examiners which conducted the Veteran's hearing loss and dizziness appropriately considered the evidence of record, the Veteran's statements, and clinical findings, and supported their findings and opinions with discussion or rationale so that they may be weighed against contrary evidence. The Board judges the findings and conclusions of these examiners to be based on sound reasoning, and accordingly gives these reports substantial credibility and deference in its adjudication.

The Board has carefully weighed all the evidence of record and considered both objective and subjective evidence. The Veteran's notable inconsistence in his reporting of the onset of tinnitus weighs against the credibility of his assertions in furtherance of his claim. So too does the absence of medical findings of hearing impairment or dizziness or tinnitus upon service treatment or upon service separation, and the absence of any treatment or other evidence of hearing loss or dizziness or tinnitus for over 30 years following service. Also weighing against such credibility are contrary medical findings and conclusions upon VA examinations.

Weighing the evidence presented, the Board concludes that the evidence preponderates against the likelihood that hearing loss or dizziness had its origin in the Veteran's service or is otherwise causally related to service. The Board accordingly concludes that the evidence preponderates against the claims for service connection for bilateral hearing loss and dizziness. 38 C.F.R. � 3.303.

In the absence of evidence supportive of the presence of sensorineural hearing loss or neurogenic dizziness within the first post-service year, service connection for either of these conditions on a first-year-post-service presumptive basis is also not warranted. 38 C.F.R. �� 3.307, 3.309.

Because the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and dizziness, the benefit of the doubt doctrine does not apply for the Board's the adjudication of these claims. 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IV. Claim for Service Connection for Lumbar
Degenerative Disk Disease

At his June 2010 hearing before the undersigned, the Veteran testified to his belief that his current low back degenerative disk disease was related to his work as a big gun projectile loader, as described supra, with repeated work lifting 55 pound projectiles. He testified that he merely dealt with back disability himself in service and post service during his work for a mining company, not seeking treatment until approximately 10 years ago. He averred that he had back pain intermittently over the years post service.

At an October 2003 VA treatment the Veteran reported having a history of degenerative disk disease of the low back for years. The treating medical practitioner noted a noted history of an MRI one-and-a-half years prior which had confirmed the presence of lumbar degenerative disk disease.

Upon October 2010 VA examination of the Veteran's lumbar spine for compensation purposes, the examiner noted the Veteran's complaints of pain, stiffness, weakness, and fatigability. The examiner noted a clinical history of 10 years of low back pain with radiating pain down the left leg. He found some thoracolumbar ranges of motion which were less than full range, but did not find current pain-related disability upon objective examination. The Veteran reported flare-ups of 10-out-of-10 pain approximately twice yearly, and reported having one incapacitating episode in the past year.

The October 2010 examiner noted that the earliest identified record of x-rays of the lumbar spine was in 2003, with no diagnosis or treatment for the lumbar spine for over 30 years following service. The examiner noted that currently there was no bone deformity or disc space abnormality on x-rays, with only tiny marginal osteophyte at L1 and L2. The examiner found on x-rays no fracture or dislocation or destructive bony lesion, with satisfactory alignment and disc spaces preserved. The examiner concluded that degenerative disk disease of the lumbar spine on x-ray "does not seem accelerated," and accordingly concluded that it was not at least as likely as not that the Veteran's lumbar degenerative disk disease was related to his service.

Based in part on the absence of any record of complaint or treatment or finding for any difficulty with the back either in service or for over 30 years following service, and based on the October 2010 VA examiner's relevant finding of non-acceleration of his degenerative disk disease over recent years, informing of the relative non-likelihood of degenerative disk disease persistent since service, the Board finds the Veteran's contention of the current back disability developing in service and recurrent on an ongoing basis since then to be lacking in credibility. Thus, while the Veteran is competent to address symptoms of disability he experienced in the past, the Board affords little weight to the Veteran's contentions in furtherance of his claim.

The Board further notes that while the Veteran is competent to assert that he has had intermittent low back pain over the years since service, he is not competent to address the uniquely medical question of whether the pain he reportedly experienced over the years represented the degenerative disk disease for which he now claims service connection, or whether the Veteran had in the past acute episodes of non-chronic back disability that are unrelated to his current degenerative disk disease. The October 2010 VA examiner has effectively concluded that the medical evidence preponderates against the possibility that the Veteran's current degenerative disk disease was causally related to service, and in making that assessment the examiner duly considered the Veteran's contentions, but also considered the absence of evidence of any low back disorder either from service or for decades post service, and further considered the current x-ray and clinical findings which the examiner found inconsistent with such a long-standing degenerative disk disease originating in service.

The Board finds that the October 2010 VA examiner's conclusions are supported by review and consideration of the relevant evidence of record, and by sound reasoning so that these conclusions and this reasoning may be weighed against contrary evidence. That contrary evidence in this case is the Veteran's assertions of ongoing, intermittent back disability beginning in service, and the Veteran's asserted belief that his current lumbar degenerative disk disease is causally related to his work in service. The Board also considers that the Veteran's work repairing mining equipment for 30 years post service may well have exposed him to strenuous work impacting his low back. The passage of time and advancing age in a physically demanding career may similarly have had an impact on his low back. Thus, the Board finds that the Veteran's work post service is also likely consistent with the VA examiner's finding and conclusion that it is not at least as likely as not that the Veteran's current lumbar degenerative disk disease is causally related to service.

Accordingly, duly considering the medical evidence presented, as well as the service and post-service intervals without supportive medical evidence, and discounting the credibility of the Veteran's assertions of back disability originating in service based on contrary credible evidence and the absence of further supporting evidence of the facts asserted, the Board finds that the preponderance of the evidence is against the Veteran's lumbar degenerative disk disease having developed in service or otherwise being causally related to service. The preponderance of the evidence is thus against the Veteran's claim for service connection for lumbar degenerative disk disease. 38 C.F.R. � 3.303.

In the absence of evidence supportive of the presence of arthritis or an arthritic-type condition (such as degenerative changes to the lumbar spine precipitating degenerative disk disease) within the first post-service year, service connection for such a condition on a first-year-post-service presumptive basis is also not warranted. 38 C.F.R. �� 3.307, 3.309.

The preponderance of the evidence is against the claim, and, therefore, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert.

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for dizziness is denied.

Service connection for lumbar degenerative disk disease is denied.

____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs


series: legacy

judge_norm: JESSICA J WILLS

disposition: dismissed

text: The appeal is dismissed.

text:
Citation Nr: 1207000
Decision Date: 02/27/12    Archive Date: 03/09/12

DOCKET NO.  09-04 075	)	DATE
	)

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUE

Entitlement to service connection for hepatitis C.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel

INTRODUCTION

The Veteran had active military service from February 1968 to September 1969.  His awards and decorations include the Combat Action Ribbon.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In his February 2009 Substantive Appeal (VA Form 9), the Veteran requested a hearing before the Board at the RO.  He later cancelled that request in a March 2011 statement. Therefore, the Board hearing request is considered withdrawn.  See 38 C.F.R. � 20.704(e) (2011).

FINDING OF FACT

On March 23, 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he was withdrawing this appeal.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. � 20.204 (2011).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. � 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. � 20.204 (2011).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. � 20.204.  Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies.  38 C.F.R. � 20.204(c).  In the present case, in March 2012, the Veteran withdrew his appeal, and hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

ORDER

The appeal is dismissed.

JESSICA J. WILLS
	Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: MICHAEL LANE

disposition: remanded

text:
Citation Nr: 1208000
Decision Date: 03/02/12    Archive Date: 03/16/12

DOCKET NO.  09-05 887	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan

THE ISSUE

Entitlement to service connection for coronary artery disease, claimed as secondary to service-connected hypertension.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

J. Barone, Counsel

INTRODUCTION

The Veteran had active service from February 1974 to February 1980.

This matter came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

The Veteran seeks service connection for coronary artery disease, which he argues is secondary to his service-connected hypertension.  Service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability.  38 C.F.R. � 3.310 (2011).  This includes disability made chronically worse by service-connected disability.   Allen v. Brown, 7 Vet. App. 439 (1995).

On VA examination in August 2007, a VA nurse practitioner concluded that coronary artery disease was not likely related to the long history of hypertension.  He stated that it was more likely related to a family history of coronary artery disease and hyperlipidemia.  He did not offer an opinion regarding whether the Veteran's service-connected hypertension had aggravated the coronary artery disease.  As such, the examination report is not adequate for the purpose of deciding the Veteran's claim.

In light of the above discussion, additional development is required.  Accordingly, the case is REMANDED for the following action:

1.  Schedule a VA cardiology examination with a physician who has the requisite expertise to determine the etiology of the Veteran's coronary artery disease.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report.

All necessary testing should be conducted, the results of which should be detailed in the examination report.

Following examination, interview of the Veteran, and review of the claims file, the examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that coronary artery disease was either caused or aggravated by the Veteran's service-connected hypertension.

If it is found that the coronary artery disease was aggravated by hypertension, a determination as to the baseline and current levels of severity should be reported, to include a determination as to the extent of aggravation by deducting the baseline level of severity, to the extent possible.

The examiner should provide a discussion of the complete rationale for any conclusion provided.  If the examiner determines that he is unable to provide the requested opinion(s) without resort to speculation, he must provide a reasoned explanation for such conclusion, which includes appropriate references to pertinent evidence of record.

2.  Upon completion of the examination, the report should be reviewed and any deficiencies addressed prior to recertification to the Board.

3.  Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional evidence obtained as a result of this remand.  If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.

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. 2010).

_________________________________________________
MICHAEL LANE
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) (2010).


judge_norm: M SABULSKY

text: The appeal is dismissed.

text:
Citation Nr: 1209000
Decision Date: 03/08/12    Archive Date: 03/19/12

DOCKET NO.  07-03 619	)	DATE
	)

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

THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for hypertension.

3. Entitlement to service connection for a back disorder, claimed as spasms.

REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney

WITNESSES AT HEARING ON APPEAL

Appellant and Spouse

ATTORNEY FOR THE BOARD

M. Hannan, Counsel

INTRODUCTION

The Veteran/appellant had active service in the United States Army from March 1953 to March 1955.

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, in part, denied the Veteran/appellant's claims of entitlement to service connection for bilateral hearing loss, hypertension and back spasms.

In September 2009, a Travel Board hearing was held before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  In November 2009, the Board granted a motion to advance the case on the Board's docket due to the Veteran/appellant's advanced age.

Thereafter, in a decision issued in November 2009, the Board denied the Veteran/appellant's claims for service connection for hypertension and back spasms; the Board also remanded the claim for service connection for bilateral hearing loss.  The Board again remanded the bilateral hearing loss service connection claim in January 2011.  The Veteran/appellant appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court).  In July 2011, the Court issued a Memorandum Decision that vacated those portions of the November 2009 Board decision that denied service connection for hypertension and back spasms and remanded those two claims for further development and readjudication.  In December 2011, the Board remanded those two claims to the RO for further development and readjudication.

FINDING OF FACT

On January 20, 2012, the Veteran/appellant's attorney notified the Board and the VA Regional Office in Waco, Texas that the Veteran/appellant had died in December 2011.

CONCLUSION OF LAW

Due to the death of the Veteran/appellant, the Board has no jurisdiction to adjudicate the merits of the bilateral hearing loss, hypertension and back spasms service connection claims at this time.  38 U.S.C.A. � 7104(a) (West 2002); 38 C.F.R. � 20.1302 (2011); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, � 212, 122 Stat. 4145, 4151 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unfortunately, the Veteran/appellant died during the pendency of the appeal.  As a matter of law, appellants' claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This appeal on the merits has become moot by virtue of the death of the Veteran/appellant and must be dismissed for lack of jurisdiction.  38 U.S.C.A. � 7104(a) (West 2002); 38 C.F.R. � 20.1302 (2011).

In reaching this determination, the Board intimates no opinion as to the merits of any one of the three claims on appeal or to any derivative claim brought by a survivor of the Veteran/appellant.  38 C.F.R. � 20.1106 (2011).

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  Such request must be filed not later than one year after the date of the appellant's death.  See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, � 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. � 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008).  As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...."  The Secretary will be issuing regulations governing the rules and procedures for substitution upon death.  Until such regulations are issued, an eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA Regional Office (RO) from which the claim originated (listed on the first page of this decision).

ORDER

The appeal is dismissed.

______________________________________________
M. SABULSKY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: JOHN J CROWLEY

disposition: denied

condition: shoulder

text:
Citation Nr: 1210000
Decision Date: 03/16/12    Archive Date: 03/28/12

DOCKET NO.  08-38 751	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for a right shoulder disability.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

A.G. Alderman, Counsel

INTRODUCTION

The Veteran had active service from July 1964 to June 1967.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Board remanded this matter in September 2010 for additional development, which has been completed.

FINDING OF FACT

The Veteran's right shoulder disability did not have onset during or as a result of service or a service-connected disability.

CONCLUSION OF LAW

The criteria for service connection for a right shoulder disability have not been met.  38 U.S.C.A. �� 1110, 5103(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R.              �� 3.159, 3.303 (2011).

REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. � 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident.  38 U.S.C.A. � 1154(b) ; 38 C.F.R. � 3.304(d).  However, the provisions of 38 U.S.C.A. � 1154(b) do not establish a presumption of service connection, but eases the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected.  See Caluza v. Brown, 7 Vet. App. 498 (1995).  That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition.  Cohen v. Brown, 10 Vet. App. 128, 138 (1997).

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).

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, 7 Vet. App. 498.  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).

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").

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno, 6 Vet. App. at 469.  See also 38 C.F.R.          � 3.159(a)(2).  In this regard, the Court of Appeals of Veterans Claims (Court) has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A.  � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Personnel records show that the Veteran was awarded the Purple Heart in 1966 due to a left shoulder shrapnel wound; however, service treatment records fail to show treatment of the right shoulder during service.  The April 1967 separation examination indicates no musculoskeletal disabilities.  All testing was noted as normal.  The accompanying report of medical history does not show right shoulder complaints, injury or treatment.  His DD-214 separation document shows that he was awarded the Vietnam Service Medal, Vietnam Campaign Medal, Purple Heart, Combat Infantryman's Badge, and National Defense Service Medal.

The Veteran had a VA examination in November 2008 at which time he reported that during service, he was in an armored personnel carrier when it hit a mine and threw him against a machine gun shield, resulting in a dislocated right shoulder.

In this regard, the Board must note that this claim of an injury during service is not in dispute.

Following this injury, the Veteran returned to unrestricted duty about one month afterward.

The examiner reviewed the claims file and noted that the Veteran had been awarded a Purple Heart for a left shoulder injury that occurred in June 1966 but that the records were silent for complaints or treatment of either shoulder.  The Veteran reported that he received the Purple Heart as a result of right shoulder complaints made in the past five years.  He said he was evaluated by his primary care doctor five years ago and was treated with physical therapy.  The examiner diagnosed right shoulder stable joint impingement syndrome with acromioclavicular arthritis but said that the evidence showed no right shoulder problem during service.  The image study showed bilateral shoulder acromioclavicular changes consistent with aging and not trauma.

Based on the foregoing, he opined that the right shoulder condition is not the result of service.

In his notice of disagreement and substantive appeal, the Veteran stated that he was stationed in Vietnam assigned to an infantry division and that his armored personnel carrier hit a mine, throwing him against a machine gun shield, resulting in a dislocated shoulder.  He said he was taken to a field hospital where he was treated for two days and was awarded a Purple Heart as a result of shrapnel in the shoulder.

In this case, the Veteran's Purple Heart and other medals indicate that he was in Vietnam and that he injured his left shoulder during service.  While it is conceivable that he may have injured his right shoulder during service, the Board finds that his current right shoulder disability (that exists today) is not related to any alleged in-service injury.

First, the Board points out that the Purple Heart was awarded for the left shoulder.

Second, the separation examination and report of medical history fail to indicate any musculoskeletal disabilities.  Given his treatment for the left should is clearly indicated, it would be reasonable to assume that if he were having problems with his other shoulder at this time he would have so indicated.

Third, the first indication of a right shoulder disability is noted in his July 2007 claim for service connection, dated more than 40 years after separation from service.

In addition, the Veteran himself told the VA examiner that his right shoulder disability had onset five years prior to the 2008 examination, in approximately 2003, or more than 36 years after separation from service, providing highly probative factual evidence against his own claim.

Consequently, the evidence shows that any potential right shoulder injury in service was not a chronic disability.  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).  Finally, and most probative of the issue is the VA examination report and opinion.  Specifically, the examiner diagnosed stable right shoulder joint impingement syndrome with bilateral shoulder acromioclavicular changes consistent with aging and not trauma and found that due to the lack of evidence of an in-service injury and lack of objective findings, the right shoulder disability is not related to service.

Even with consideration of the Veteran's highly honorable service and all combat presumptions, while the Board sincerely believes that the Veteran may have injured his right shoulder during service, the evidence simply does not show that any such injury was chronic in nature or that any current disability is in any way related to alleged in-service injuries.  The evidence, to include the Veteran's statements, does not support a finding of chronicity of symptomatology and actual provides highly probative evidence against such a finding.

Regarding the Veteran assertions that his current problem from 2012 is the result of his injury from the 1960's, he is not competent to render an opinion on such matters as the onset and etiology of right shoulder stable joint impingement syndrome with bilateral shoulder acromioclavicular changes is not a disability readily observed by laypersons.  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 sum, the Board finds that the preponderance of the evidence weighs against the claim.  Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application.  The appeal is denied.

The Duty to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b).  In accordance with 38 C.F.R.  � 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

Here, the duty to notify was satisfied by way of a letter sent to the Veteran in August 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. � 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. � 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. � 3.159(c)(4).

In this case, all necessary development has been accomplished; therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  He was afforded a VA medical examination in November 2008.  The Board finds that the examination report is adequate for rating purposes because the examiner had the claims file for review and proffered an etiology opinion with rationale based upon all available evidence.  During his VA examination, the Veteran noted that he had been treated with physical therapy.  Because physical therapy records had not been associated with the claims file, in September 2010 VA asked him to provide contact information for his physical therapist and to complete and return consent and release documents so that records could be obtained.  He did not respond to VA's request or provide his records.  Thus, without adequate information, VA was unable to obtain the outstanding medical records.

Finally, 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 claim that has not been obtained or that the VA has not attempted to obtain.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

Service connection for a right shoulder disability is denied.

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

Department of Veterans Affairs


judge_norm: DONNIE R HACHEY

text:
Citation Nr: 1211000
Decision Date: 03/27/12    Archive Date: 04/05/12

DOCKET NO.  08-18 692	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to an initial compensable rating for left ear hearing loss.

REPRESENTATION

Veteran represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

M. Sorisio, Counsel
INTRODUCTION

The Veteran served on active duty from September 1970 to April 1974, December 1990 to July 1991, and February 2003 to September 2003.

These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2007 and June 2009 rating decisions of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO).

A Board hearing was held before the undersigned in July 2010.  A transcript of this hearing is of record.

FINDINGS OF FACT

1.  The Veteran does not have right ear hearing loss for VA purposes.

2.  Throughout the appeal period, the Veteran's left ear hearing loss has been manifested by no more than Level I hearing.

CONCLUSIONS OF LAW

1.  Service connection for right ear hearing loss is not warranted.  38 U.S.C.A. �� 1110, 5107(b) (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.385 (2011).

2.  The criteria for an initial compensable disability rating for left ear hearing loss have not been met.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. �� 3.321, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2011).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. � 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. � 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. � 3.159(b)(1) (2011).  The VCAA notice requirements apply to all five elements of a service-connection claim:  Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006).

For the claim of service connection for right ear hearing loss, the Veteran was issued an October 2006 VCAA letter prior to issuance of the May 2007 rating decision on appeal.  This letter specifically advised him of the evidence needed to substantiate a service-connection claim, and outlined his responsibilities and those of VA in obtaining relevant evidence.  Pursuant to Dingess, this letter also described in detail how VA assigns a disability rating and effective date following a grant of service connection.  The October 2006 letter complied with VA's duty to notify under 38 C.F.R. � 3.159(b).

For the claim for an initial increased rating for left ear hearing loss, since the June 2009 rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess, 19 Vet. App. at 490-91.  A July 2010 Statement of the Case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating and readjudicated the matter.  38 U.S.C.A. � 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  The Veteran has had ample opportunity to respond and supplement the record.  He has not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues").

All relevant evidence necessary for an equitable resolution of the issues on appeal has also been identified and obtained, to the extent possible.  The evidence of record includes the Veteran's available service treatment records (STRs); the report of a July 2008 VA examination; private treatment records from audiologist J.A.C.; multiple lay statements; and the transcript of the July 2010 hearing before the undersigned.

The record reflects the RO undertook extensive efforts to secure the Veteran's complete STRs; however, these efforts were unsuccessful.  In February 2008, the RO notified the Veteran of the efforts it had undertaken to secure these records and requested that the Veteran submit any STRs in his possession.  38 C.F.R. � 3.159(e) (2011).  The Veteran submitted records of audiometry results from 1983 to 2003; many of these audiometry tests were completed during his National Guard service.  It is clear from the record that additional attempts to obtain the Veteran's STRs would be futile and would only serve to delay resolution of this appeal.  See 38 U.S.C.A. � 5103A(a)(2) (West 2002) (stating that VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim); see also Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) (finding that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile).  Notably, the Veteran's claim of service connection for right ear hearing loss is being denied on the basis that he does not currently have right ear hearing loss; therefore, evidence of what occurred during service is not pertinent to resolving the appeal.

The Veteran and his representative have not identified any other outstanding relevant evidence.

The RO arranged for a VA audiological examination in July 2008.  The examiner completed all necessary audiometric testing, examined the Veteran, and reviewed his claims file.  Therefore, the examination was adequate for the service connection claim and for schedular evaluation purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  Regarding the adequacy of the examination for extraschedular evaluation, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) noted that, unlike the rating schedule for hearing loss, the extraschedular provisions do not rely exclusively on objective test results to determine whether referral for an extraschedular rating is warranted.  The Court held that 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.  Id.  Here, the July 2008 VA audiological examiner did not provide an adequate description of the functional effects of the Veteran's left ear hearing loss.  However, the Veteran provided testimony at the July 2010 hearing about such functional effects.  Board Hearing Tr. at 4-5.  Therefore, the Veteran is not prejudiced because the examiner did not discuss the functional effects caused by his left ear hearing loss disability, since the record contains sufficient evidence to evaluate the Veteran's claim on an extraschedular basis.

Additionally, the evidence does not reflect that there has been a worsening of hearing loss so as to warrant remand for another examination.  At the July 2010 hearing, the Veteran testified that his hearing was about the same as it was upon July 2008 VA examination.  Board Hearing Tr. at 9.  Private audiological test results from May 2009 also provide audiometric findings that are similar to those found on July 2008 VA examination.  The mere passage of time since a VA examination does not require VA to schedule a new examination; the record needs to contain evidence or allegations of worsening.  Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (Apr. 7, 1995).

The Veteran also was provided an opportunity to set forth his contentions during the July 2010 hearing before the undersigned.  The Court has held that the requirements of 38 C.F.R. � 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  The record reflects that at the July 2010 hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. � 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.

Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II.  Service Connection for Right Ear Hearing Loss

The Veteran contends that he has right ear hearing loss that is related to his exposure to hazardous noise during service as a pilot and a pilot instructor.

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303 (2011).  Service connection may also be granted on a presumptive basis for certain chronic disabilities, including organic disabilities of the nervous system such as sensorineural hearing loss, when manifested to a compensable degree within the initial post-service year.  38 U.S.C.A. �� 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. �� 3.307, 3.309(a) (2011).

In order to establish service connection for the claimed disorder, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. � 3.385 (2011).

As noted above, the RO was unable to obtain the Veteran's complete STRs.  When STRs are lost or missing, VA has a heightened obligation to satisfy the duty to assist and consider the applicability of the benefit of the doubt rule.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

Crucial to the award of service connection is the first Hickson element, existence of a current disability.  Without it, service connection cannot be granted.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (finding that the requirement of having a current disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability).

With respect to the first Hickson element, there are three audiological examinations taken during the appeal period that are of record:  July 2006 and May 2009 audiological testing reports from private audiologist J.A.C. and a July 2008 VA examination report.

The July 2006 private audiometry results reveal puretone thresholds, in dB, as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
5
5
20
30
25

The speech recognition score using the Maryland CNC test was 96 percent in the right ear.

The July 2008 VA examination yielded the following puretone threshold levels:

HERTZ

500
1000
2000
3000
4000
RIGHT
5
10
5
25
20

The Maryland CNC speech recognition score was 100 percent in the right ear.

An audiological evaluation completed in May 2009 by private audiologist J.A.C. revealed puretone thresholds as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
5
5
15
30
30

The Maryland CNC speech recognition score for the right ear was 96 percent.

None of these audiometry results reveal right ear hearing loss for VA purposes as the auditory thresholds in the appropriate frequencies were not 40 dB or greater and they were not 26 dB or greater in three of the appropriate frequencies.  Additionally, speech recognition scores were all above 94 percent.  38 C.F.R. � 3.385 (2011).

The only other evidence in the claims file supporting the existence of hearing loss for VA purposes is the Veteran's own statements.  The Veteran is competent to testify as to a condition within his knowledge and personal observation.  See Barr v. Nicholson, 21 Vet. App. 303, 308-10 (2007).  Therefore, he is competent to report that he has difficulty hearing, but he is not competent to state that he has hearing loss by VA standards, as such requires specialized medical knowledge and specific testing to diagnose or assess the level of disability.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. � 3.159 (2011) (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  The Veteran's statements to the effect that he has current hearing loss for VA purposes are accordingly lacking in probative value.

In short, the first Hickson element of a current disability has not been satisfied, and the Veteran's service-connection claim for right ear hearing loss fails on that basis alone.  Accordingly, in the absence of medical evidence demonstrating right ear hearing loss for VA purposes, a preponderance of the evidence is against the claim of service connection for right ear hearing loss and the benefit-of-the-doubt rule is not for application.  The benefit sought on appeal is denied.

III.  Initial Compensable Rating for Left Ear Hearing Loss

The Veteran contends that his left ear hearing loss disability is severe enough to warrant a compensable disability rating.  He specifically notes that his hearing loss has made it increasingly difficult for him to effectively communicate with family, friends, and colleagues.  See Board Hearing Tr. at 4-5.

Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011).  The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. �� 3.321(a), 4.1 (2011).

A request for an increased rating must be viewed in light of the entire relevant medical history.  38 C.F.R. � 4.1 (2011); Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991).

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See 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, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz or Hz).

The rating schedule establishes eleven 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 puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. � 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss.

The percentage evaluation is found from Table VII (in 38 C.F.R. � 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal 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.  See 38 C.F.R. � 4.85 (2011).

Where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of � 3.383.  38 C.F.R. � 4.85(f) (2011).  Section 3.383(a)(3) provides for compensation to be payable for service-connected and nonservice-connected hearing loss as if both disabilities were service-connected where service-connected hearing impairment in one ear is compensable to a degree of 10 percent or more and nonservice-connected hearing in the other ear meets the provisions of � 3.385.

The provisions of 38 C.F.R. � 4.86(a) provide that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 dB 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.  The provisions of 38 C.F.R. � 4.86(b) provide that when the puretone threshold is 30 dB or less at 1000 Hertz, and 70 dB or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.

As explained in the service connection analysis above, the record contains the report of three audiological evaluations taken during the appeal period.

An audiological evaluation completed in July 2006 by private audiologist J.A.C. revealed puretone thresholds, in dB, as follows:

HERTZ

500
1000
2000
3000
4000
LEFT
0
0
10
30
35

The average puretone threshold was 19.  Speech audiometry using the Maryland CNC test revealed speech recognition ability of 92 percent in the left ear.

On VA examination in July 2008, puretone thresholds were as follows:

HERTZ

500
1000
2000
3000
4000
LEFT
5
5
10
25
20

The average puretone threshold was 15.  The Maryland CNC speech audiometry recognition score in the left ear was 100 percent.

An audiological evaluation completed in May 2009 by private audiologist J.A.C. revealed puretone thresholds as follows:

HERTZ

500
1000
2000
3000
4000
LEFT
5
5
15
40
40

The average puretone threshold was 25.  Speech audiometry revealed speech recognition ability of 92 percent in the left ear.

The audiometric results from July 2006, July 2008, and May 2009 correspond to a numeric designation of Level I hearing in the left ear.  38 C.F.R. � 4.85, Table VI (2011).  Since impaired hearing in the Veteran's right ear is not service-connected, the Board assigns it a Roman numeral designation of I.  38 C.F.R. � 4.85(f) (2011).  The combined numeric designations result in a noncompensable rating under Diagnostic Code 6100.  38 C.F.R. � 4.85, Table VII (2011).

None of the audiometry results show an exceptional pattern of hearing impairment, so they cannot be rated under the alternate criteria in Table VIA, based only on puretone thresholds.  See 38 C.F.R. � 4.86 (2011).

The provisions of 38 C.F.R. � 3.383 are not applicable in this case since the Veteran does not have hearing impairment to a degree of 10 percent or more in his left ear and, as explained in the service connection analysis above, he does not have hearing impairment in his right ear that meets the provisions of � 3.385.
The Veteran's lay assertions that his hearing impairment is greater than reflected by a noncompensable rating are insufficient to establish this is so.  Although the Veteran is competent to report that he has difficulty hearing, he is not competent to establish the actual level of hearing disability by his own opinion.  See Barr, 21 Vet. App. at 308-10; Espiritu, 2 Vet. App. at 495.  This determination is made based on audiometric testing and the rating of hearing loss disability involves the mechanical application of the rating schedule, which here results in a noncompensable rating.  See Lendenmann, 3 Vet. App. at 349.

The Board has considered whether staged ratings are appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings").  The Board finds that auditory threshold levels in the left ear have not undergone any significant increase or decrease so as to warrant a compensable rating at any time during the appeal period.  Accordingly, staged ratings are not warranted.

The Board has also considered whether referral for an extraschedular rating is appropriate.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. � 3.321(b)(1) (2011).  Related factors include "marked interference with employment" and "frequent periods of hospitalization."  Id.

When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his schedular rating inadequate.  The Veteran's left ear hearing loss has been evaluated under the applicable diagnostic code that has specifically contemplated the level of occupational impairment caused by that disability.  The Veteran testified at the July 2010 hearing that at work he finds himself compensating for his difficulty hearing by writing names and other details down and that he has trouble discriminating and hearing words.  Board Hearing Tr. at 4.  Additionally, he reported that he sometimes misunderstands what his wife tells him and has difficulty hearing when there is background noise.  Id. at 4-5.  Based on consideration of all of the relevant evidence of record, the Board finds that impairment caused by left ear hearing loss is contemplated by the rating assigned under Diagnostic Code 6100.  In short, there is no indication in the record that the average industrial impairment from the Veteran's left ear hearing loss would be in excess of that contemplated by the assigned rating; the Veteran's disability picture is not shown to be exceptional or unusual.  Therefore, referral for assignment of an extraschedular evaluation in this case is not in order.  Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996).

In summary, the Board has considered the benefit of the doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for an initial compensable rating for left ear hearing loss, the benefit-of-the-doubt rule is not for application.  38 U.S.C.A. � 5107 (West 2002); 38 C.F.R. � 4.3 (2011).  The benefit sought on appeal is denied.

      (CONTINUED ON NEXT PAGE)

ORDER

Service connection for right ear hearing loss is denied.

An initial compensable rating for left ear hearing loss is denied.

____________________________________________
Donnie R. Hachey
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs