Citation Nr: 0428947 Decision Date: 10/21/04 Archive Date: 10/28/04 DOCKET NO. 03-31 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a chronic respiratory disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for diabetes mellitus. 5. Entitlement to service connection for elbow scars. 6. Whether new and material evidence was received to reopen a claim for entitlement to service connection for a left ankle disorder. 7. Whether new and material evidence was received to reopen a claim for entitlement to service connection for left knee chondromalacia. 8. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who had over 25 years of active duty service, including from April 1985 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the No. Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2004. A copy of the transcript of that hearing is of record. The Board notes that in correspondence dated in October 2002 the veteran expressed disagreement with all 10 issues addressed in the September 2002 rating decision. In an April 2003 rating decision the RO granted entitlement to service connection for a panic disorder with agoraphobia and for tinnitus; the veteran was notified that these determinations were considered a complete resolution of those issues on appeal. In correspondence dated April 30, 2003, the veteran was also notified of his appellate rights as to those most recent determinations. As the veteran submitted no correspondence that may be reasonably construed as a timely notice of disagreement from the compensation level assigned for those service-connected disabilities, the Board finds the issues listed on the title page of this decision are the only matters remaining for appellate review. See 38 C.F.R. § 20.201 (2004); Gallegos v. Principi, 283 F.3d 1309 (2002) In August 2003, the RO issued a statement of the case on the remaining issues on appeal; however, the issue of entitlement to service connection for elbow scars was apparently inadvertently omitted from that document. Although the veteran has included this as an issue on appeal, the matter has not been properly addressed in a statement of the case. Therefore, it must be remanded for appropriate development. The United States Court of Appeals for Veterans Claims (Court) has held that where the Board finds a notice of disagreement has been submitted regarding a matter which has not been addressed in a statement of the case, the issue should be remanded for appropriate action. Manlincon v. West, 12 Vet. App. 238 (1999). Although the RO adjudicated the issues of entitlement to service connection for a left ankle disorder and left knee chondromalacia in the August 2003 statement of the case on the merits, the Board is required to determine whether new and material evidence has been presented when a claim has been previously disallowed based upon the same factual basis. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). For this reason, the Board has listed the issues on the title page concerning these matters as whether new and material evidence has been submitted to reopen the claims for service connection. The Board notes that statements provided at the veteran's videoconference hearing in July 2004 may be construed as a claim for a rating in excess of 10 percent for his panic disorder with agoraphobia. This matter is referred to the RO for appropriate action. The issues of entitlement to service connection for hypertension and for elbow scars are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of his claims and has sufficiently notified him of the information and evidence necessary to substantiate these claims. 2. A chronic respiratory disorder was not present during the veteran's military service nor is any current respiratory disorder due to any incident of such service. 3. The medical evidence demonstrates no present right knee disability. 4. The evidence demonstrates that the veteran served in the Republic of Vietnam and that he currently suffers from diabetes mellitus. 5. In a December 1989 rating decision the RO denied service connection for left ankle stiffness. 6. Evidence added to the record since the December 1989 rating decision as to the claim for left ankle stiffness is either cumulative or redundant of the evidence of record or does not raise a reasonable possibility of substantiating the claim. 7. In a December 1989 rating decision the RO denied service connection for left knee chondromalacia. 8. Evidence added to the record since the December 1989 rating decision as to the claim for left knee chondromalacia is either cumulative or redundant of the evidence of record or does not raise a reasonable possibility of substantiating the claim. 9. Audiometric evaluations for bilateral hearing loss for VA compensation purposes reveal Level I hearing acuity in the right ear and Level I hearing acuity in the left ear; exceptional or unusual circumstances warranting extraschedular consideration are not shown. CONCLUSIONS OF LAW 1. A chronic respiratory disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 2. A chronic right knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 3. The veteran's diabetes mellitus is presumed to have been incurred as a result of herbicide exposure during active service in the Republic of Vietnam. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). 4. New and material evidence has not been submitted, and a claim of entitlement to service connection for a left ankle disorder may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2004). 5. New and material evidence has not been submitted, and a claim of entitlement to service connection for left knee chondromalacia may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2004). 6. The requirements for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.87, Tables VI, VII (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law. Regulations implementing the VCAA have been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA and the implementing regulations apply in the instant case. A review of the record shows the veteran was notified of the VCAA as it applies to his claims by correspondence dated in April 2003. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the veteran in April 2003 was not given prior to the first agency or original jurisdiction (AOJ or RO) adjudication of the claims, the notice was provided by the AOJ prior to the transfer and certification of the veteran's case to the Board. The issues on appeal were also re-adjudicated and a statement of the case was provided to the veteran in August 2003. The veteran has been provided every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. A VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. In this case, the April 2003 VCAA notice letter generally informed the veteran of the evidence not of record that was necessary to substantiate his claims and identified which parties were expected to provide such evidence. Although the letter did not specifically address the VCAA "fourth element," the Board finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claims. In fact, 38 C.F.R. § 3.159(b)(1), which includes this "fourth element," was cited in the August 2003 statement of the case. In light of the actual notice provided, the Board finds that any content deficiency in the April 2003 notice letter was non-prejudicial error. The veteran has been provided every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. Therefore, to decide the appeal would not be prejudicial error. See VAOPGCPREC 7-2004 (July 16, 2004). All the VCAA requires is that the duty to notify be satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Here, because each of the content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the veteran covering all content requirements is harmless error. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. See 38 C.F.R. § 3.159. In this case, the veteran's service medical records and all identified and authorized post-service medical records relevant to the issues on appeal have been requested or obtained. Although at his July 2004 hearing the veteran indicated private medical records pertinent to his claims were not of record, he failed to provide the requisite authorization to allow the RO to obtain those records. Therefore, the Board finds further attempts to obtain additional evidence would be futile. In claims for disability compensation the VCAA duty to assist requires VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. The Board notes that specific VA medical opinions pertinent to the issues on appeal were obtained in July 2002 and May 2003. The available medical evidence is sufficient for adequate determinations of the issues addressed in this decision. Therefore, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled. Service Connection Claims Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). Generally, where a veteran had 90 days or more of continuous, active military during a period of war and certain chronic diseases become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2004). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2004). Chronic Respiratory Disorder Service records show the veteran served as a jet engine mechanic. Performance evaluations indicate he was involved in all types of jet engine repair and maintenance. Service medical records are negative for complaint, treatment, or diagnosis of any respiratory disorders. The veteran's June 1989 retirement examination revealed a normal clinical evaluation of the lungs and chest. The veteran denied any history of asthma or shortness of breath at that time. VA examination in November 1989 revealed a normal respiratory system. Private medical records include diagnoses of chronic obstruction pulmonary disease (COPD), emphysema, bronchitis, and acute bronchitis with asthma. A December 1998 report noted the veteran's COPD was secondary to chronic cigarette abuse. Chest X-rays in December 2001 revealed calcified granulomas and hyperinflated lung fields consistent with emphysema. Of record is a copy of page three of correspondence dated in December 2001 from Dr. L.A. indicating the veteran had been advised of the importance of smoking cessation and a recommendation that "if he continue[d] to have symptoms, in spite of adequate medical therapy, he may warrant a high resolution [computed tomography] scan of his chest to also rule out occupational lung disease." In statements and testimony in support of his claim the veteran stated that his private physician had indicated that his emphysema was due to stone dust, sand dust, and asbestos dust. He reported that during service he had been exposed to asbestos in his military housing, by gaskets used for engine ducting, and by materials used for aircraft brakes. He stated he had not received treatment during service for a respiratory disorder, but that he had experienced episodes of shortness of breath. He denied a history of any occupational asbestos exposure after service. VA examination in May 2003 included diagnoses of emphysema with chronic obstructive lung disease and no evidence of asbestosis. The examiner noted that the veteran reported he had been exposed to asbestos during service, but that he had not been provided a diagnosis of asbestos lung disease and his past chest films had not shown any obvious evidence of this disease. The examiner stated that based upon a review of the claims folder, including a 2001 report of a private pulmonary specialist, the veteran was exposed to asbestos in service, but that he did not have any present asbestos- related lung disease and that his present emphysema was not due to asbestos exposure. Based upon the evidence of record, the Board finds the medical evidence demonstrates that a chronic respiratory disorder was not incurred in nor as a result of active service. There is no probative evidence of any chronic respiratory disorder having been incurred in or aggravated by active service and no evidence of any diagnosis of a chronic disorder for many years after service. Private medical records dated in December 1998 attributed his COPD to chronic cigarette abuse and the December 2001 report of Dr. L.A. merely indicated that an additional study may be required to rule out occupational lung disease if his symptoms continued. The Board finds the May 2003 VA examiner's opinion persuasive that the veteran does not have a current respiratory disorder that was incurred as a result of his asbestos exposure during active service. VA law, for claims received after June 9, 1998, prohibits service connection for death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during active service. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2004). As the veteran's claim was received on December 31, 2001, his use of tobacco products during active service may not be considered for the purpose of establishing service connection. Although the veteran believes his chronic respiratory disorders were incurred as a result of asbestos exposure during active service, he is not a licensed medical practitioner and he is not competent to offer opinions on questions of medical causation or diagnosis. See Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, the Board finds that service connection for a chronic respiratory disorder is not warranted. When all the evidence is assembled VA is then 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. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the preponderance of the evidence is against the veteran's claim. Right Knee Disorder Service medical records show that in May 1981 the veteran complained that he had twisted his right knee playing softball. He noted he had been able to continue playing and the knee did not become uncomfortable until approximately four hours later. The examiner noted marked swelling about the patella and generalized tenderness. There was no evidence of deformity, point tenderness, diminished range of motion, diminished strength, diminished sensitivity, laxity, or instability. X-rays were negative for fracture. The diagnoses included traumatic effusion of the right knee and soft tissue injury. A June 1981 report noted the veteran's right knee was within normal limits. The diagnosis was resolved soft tissue injury. The veteran's June 1989 retirement examination revealed a normal clinical evaluation of the lower extremities. Private medical records dated in December 1998 noted the veteran complained of arthritis including to the knees. A diagnosis of osteoarthritis of the knees was provided. The physician provided no rationale for the basis of that diagnosis. In statements and testimony in support of his claim the veteran claimed he had osteoarthritis of the right knee as a result of injuries incurred during active service. He noted he had been treated during service for an injury incurred while playing softball and that he had also incurred injuries climbing stairs and around aircraft. On VA examination in May 2003 the veteran complained of pain and swelling to the knees, left more than right. The examiner noted the veteran's knees were essentially within normal limits with full range of motion. The patellae tracked well and there was no instability in any direction. Based upon the evidence of record, the Board finds the medical evidence demonstrates no present right knee disability. Although private medical record include a diagnosis of osteoarthritis of the knees, no rationale demonstrating the basis for that diagnosis has been provided. The Board finds the May 2003 VA examination findings of knees essentially within normal limits are persuasive. Therefore, the Board finds entitlement to service connection for a right knee disorder is not warranted. The preponderance of the evidence is against the veteran's claim. Diabetes Mellitus Service records show that from June 1966 to January 1967 the veteran served as a jet engine mechanic at an air base in Ubon, Thailand. The veteran's DD Form 214 shows he received decorations and awards including a Vietnam Service Medal with three bronze service stars, a Republic of Vietnam Gallantry Cross with Palm Device, and a Republic of Vietnam Campaign Medal. Post-service medical records include diagnoses of uncontrolled diabetes mellitus. No opinions as to etiology were provided. In statements and personal hearing testimony in support of his claim the veteran asserted his diabetes mellitus was incurred as a result of his exposure to Agent Orange during active service. He stated that while stationed in Thailand he participated in three missions into the Republic of Vietnam as a maintenance crewman. He reported he had been recruited for these missions, but that he never received any formal orders. He described these missions as having been of approximately one week each. Certain disorders, including diabetes mellitus, associated with herbicide agent exposure in service may be presumed service connected. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Based upon the evidence of record, the Board finds the veteran served in the Republic of Vietnam and that his diabetes mellitus is presumed to have been incurred as a result of herbicide exposure. In light of the awards and decorations the veteran received for his service during the Vietnam era, the Board finds his description of having participated in missions to the Republic of Vietnam on three occasions to be credible and consistent with the conditions of his service. There is no affirmative evidence indicating the veteran was not exposed to Agent Orange during that service. Therefore, entitlement to service connection for diabetes mellitus is warranted. New and Material Evidence Claims VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2004). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). Left Ankle Disorder In a December 1989 rating decision the RO denied service connection for left ankle stiffness, based upon a finding that an existing left ankle disorder was not aggravated by active service. The veteran did not appeal that determination and it has become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2004). The evidence available at the time of that decision included a September 1963 enlistment examination which noted a well- healed fracture to the left ankle. A June 1980 service medical report noted the veteran complained of pain and swelling to the left ankle and lower leg after he was struck by a sliding ball player. The examiner noted a grade II sprain to the left ankle. The veteran's June 1989 retirement examination revealed a normal clinical evaluation of the lower extremities. On VA examination in December 1989 the veteran complained of occasional soreness and stiffness, especially in cold weather. The examiner noted full range of motion without evidence of effusion, edema, deformity, or tenderness to palpation. X-rays revealed normal articular surfaces and joint spaces. The evidence added to the record since the December 1989 rating decision includes the veteran's testimony that he developed chronic left ankle sprains during active service. VA examination in May 2003 revealed a slight increase in left ankle laxity, but no evidence of frank subluxation or significant instability. It was the examiner's opinion that there was no chronic disability of the left ankle at that time. Based upon a comprehensive review of the record, the Board finds the evidence added to the claims file since the last decision is either cumulative or redundant of the evidence of record or does not raise a reasonable possibility of substantiating the claim. In fact, it was the opinion of the May 2003 VA examiner that the veteran had no present chronic disability of the left ankle. As the information provided in support of the application to reopen a claim for entitlement to VA benefits does not include new and material evidence, the application to reopen the claim must be denied. Left Knee Chondromalacia In a December 1989 rating decision the RO denied service connection for left knee chondromalacia. The veteran did not appeal that determination and it has become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2004). The evidence available at the time of that decision included service records showing the veteran sustained a left ankle sprain and left lower leg abrasions in May 1980. The veteran's June 1989 retirement examination revealed a normal clinical evaluation of the lower extremities. At his November 1989 VA examination the veteran complained of intermittent popping of the left knee, but denied edema or pain. The examiner noted there was slight crepitation with motion. There was full range of motion and his strength was normal. There was no evidence of edema, effusion, or gait impairment. X-rays of the left knee revealed normal articular surfaces and joint spaces. The diagnoses included left knee chondromalacia. The evidence added to the record since the December 1989 rating decision includes private medical records dated in December 1998 providing diagnoses of osteoarthritis of the knees, without providing the rationale for that diagnosis. At his May 2003 VA examination the veteran reported he had undergone arthroscopic removal of a portion of the left meniscus in 1991; however, the examiner stated that it was most likely that the veteran had not incurred a left knee injury during active service. Although at his July 2004 hearing the veteran indicated he had been treated for a left knee disorder soon after service, he failed to provide the requisite authorization to allow the RO to obtain those records. Based upon the evidence of record, the Board finds the evidence added to the claims file since the last decision is either cumulative or redundant of the evidence of record or does not raise a reasonable possibility of substantiating the claim. In fact, it was the opinion of the May 2003 VA examiner opinion that it was more likely that the veteran had not incurred a left knee injury during active service. As the information provided in support of the application to reopen a claim for entitlement to VA benefits does not include new and material evidence, the application to reopen the claim must be denied. Increased Rating Claim Factual Background Service medical records show that at his June 1989 retirement examination pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 5 5 40 50 25 LEFT 5 15 45 45 27.5 On VA authorized audiological evaluation in November 1989, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 15 55 60 35 LEFT 10 15 40 45 27.5 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. In a December 1989 rating decision the RO established entitlement to service connection for bilateral hearing loss. A 0 percent disability rating was assigned. On VA authorized audiological evaluation in June 2002, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 45 70 65 51 LEFT 20 35 65 60 45 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. On VA authorized audiological evaluation in May 2003, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 45 75 70 54 LEFT 20 35 70 70 49 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 92 percent in the left ear. The examiner noted the results were essentially unchanged when compared to the July 2002 findings. In statements and testimony in support of his claim the veteran asserted that his hearing loss was more severely disabling than represented by the present rating. He noted that he experienced problems even while using hearing aids. He claimed hearing tests did not adequately assess his disability because they did not include additional background noise. Analysis Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2004). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2004). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2004). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2004). The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA regulations require that an examination for hearing impairment for VA purposes must be conducted by a state- licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85 (2004). The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state- licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. Id. In this case, VA audiometric evaluations in May 2003 revealed findings for VA purposes of Level I hearing acuity in the right ear and Level I hearing acuity in the left ear. See 38 C.F.R. §§ 4.85, Table VI. These findings do not warrant a compensable disability rating. See 38 C.F.R. § 4.85, Table VII. No competent evidence demonstrating a more severe hearing loss has been submitted. The veteran is presently receiving a separate 10 percent rating for service-connected tinnitus. Therefore, the Board finds entitlement to a higher rating for bilateral hearing loss is not warranted. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no provision upon which to assign any higher rating. The Board also finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder, that would take the veteran's case outside the norm so as to warrant an extraschedular rating. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The preponderance of the evidence is against the veteran's claim. ORDER Entitlement to service connection for a chronic respiratory disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for diabetes mellitus is granted. The appeal to reopen a claim for entitlement to service connection for a left ankle disorder is denied. The appeal to reopen a claim for entitlement to service connection for left knee chondromalacia is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. REMAND As noted above, on November 9, 2000, the VCAA became law. The VCAA and its implementing regulations apply in the instant case. A review of the record shows that the veteran was notified of the VCAA as it applies to his service connection claims by correspondence dated in February 2003. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159 (2004). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. See 38 C.F.R 3.159(c)(4). In this case, the veteran contends that several times during active service his blood pressure readings had been re-tested after some period of rest. He stated the first, higher readings manifest at those times were never recorded for his medical record. He claims, in essence, that those findings, had they been recorded, would substantiate his claim. Service medical records include blood pressure findings of 118/96 on June 13, 1980. The veteran's June 1989 separation examination report noted blood pressure findings of 124/80. The veteran denied a history of high or low blood pressure at that time. Post-service medical records include diagnoses of hypertension, without opinion as to etiology. Therefore, the Board finds an additional medical opinion is required prior to appellate review. As a statement of the case has not been issued from the veteran's disagreement with the September 2002 denial of entitlement to service connection for elbow scars, additional development is required. Manlincon, 12 Vet. App. 238. Accordingly, the case is REMANDED for the following: 1. The RO should issue a statement of the case as to the issue of entitlement to service connection for elbow scars. The veteran and his representative should be apprised that to perfect the appeal on this issue for Board review, he must submit a substantive appeal. The RO should allow the requisite period of time for a response. 2. The veteran should be scheduled for an appropriate examination for an opinion as to whether it is as likely as not that his hypertension was incurred in or aggravated by active service. The examiner should be informed that the veteran contends that several times during active service his blood pressure readings had been re-tested after some period of rest and that service medical records include blood pressure findings of 118/96 on June 13, 1980. The claims folder must be available to, and reviewed by, the examiner. The examiner should reconcile any opinions given with the evidence of record and provide a complete rationale. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed. If the benefit sought remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2