Citation Nr: 1300754 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-15 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to service connection for degenerative changes of the cervical spine, including as secondary to service-connected bilateral knee disabilities. 3. Entitlement to service connection for a bipolar disorder. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD), including as secondary to service-connected bipolar disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) from November 2005 and May 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issue of entitlement to service connection for degenerative changes of the cervical spine, the issue of entitlement to service connection for a bipolar disorder, and the issue of entitlement to service connection for GERD, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has Level I hearing loss in the right ear and Level I hearing loss in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The appeal for an increased rating for bilateral hearing loss arises from the Veteran's disagreement with the initial rating evaluation following the grant of service connection, the VCAA requires that the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No additional notice is required in the adjudication process because of the other forms of notice-such as notice contained in the rating decision and statement of the case (SOC) have already provided the claimant with the notice of law applicable to the specific claim on appeal. Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007). The Board further notes that a December 2008 letter from the RO advised the Veteran of the VCAA, including the types of evidence and/or information necessary to substantiate his increased rating claim and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). As to the duty to assist, VA has associated with the claims folder the Veteran's service treatment records, VA treatment records, and private medical records. The Veteran has been provided VA audiological examinations, and the Veteran was additionally afforded a Travel Board hearing. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The November 2005 rating decision on appeal granted service connection for bilateral hearing loss. The RO assigned a noncompensable initial rating effective from January 2005. In May 2008 the Veteran reported that he had been given hearing aids by VA and asserted that he should be assigned at least a 20 percent rating for his bilateral hearing loss. At his April 2012 hearing the Veteran did not provide testimony with respect to his bilateral hearing loss. His representative did request another examination as to this disability, "if need," however, the Board's review of the most recent VA examination reflects that it is adequate for rating purposes and neither the Veteran nor his representative otherwise claimed that his hearing loss had worsened since his last examination. Consequently, the Board does not find that further VA examination is warranted at this time. A July 2005 VA audiometric evaluation revealed right ear puretone thresholds, in decibels, of 20, 20, 30, 65, and 70 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 46 decibels. Audiometric evaluation in the left ear revealed puretone thresholds of 20, 25, 35, 60, and 75 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 49 decibels. Speech recognition ability was 96 percent on the right and 92 percent on the left. The Veteran's greatest functional impairment was noted to be hearing in the presence of other noises. The Veteran submitted a private audiological examination report dated in August 2006. The Board notes that the report does not contain all the required information necessary for rating hearing loss under VA rating criteria and therefore may not be used for rating the Veteran's bilateral hearing loss. Interestingly, this report indicates that the Veteran had speech recognition scores of 100 percent in each ear. Considering the Veteran's speech recognition scores and the audiogram, this report would result in a showing of better hearing acuity than the VA audiometric reports of record. The Veteran was provided another VA audiometric evaluation in February 2009. The Veteran stated that he could not really tell if his hearing loss had gotten worse. Testing revealed right ear puretone thresholds, in decibels, of 20, 25, 30, 65, and 75 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 49 decibels. Audiometric evaluation of the left ear revealed puretone thresholds of 25, 25, 30, 60, and 75 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 48 decibels. Speech recognition ability was 96 percent in the right ear and 92 percent in the left ear. The examiner noted that the Veteran's greatest functional impairment was difficulty understanding in the presence of competing noise. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Board notes that since the February 2009 VA audiological examination the Veteran has not indicated that his hearing loss had worsened. As noted above, he did not offer testimony about his hearing loss disability at his April 2012 hearing. 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 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted by 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 loss based on the pure tone 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 decibel 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. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. 38 C.F.R. § 4.86(a) indicates that if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 38 C.F.R. § 4.86(b) indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. In this case, the Veteran's hearing loss does not meet these criteria and the Veteran's disability cannot be evaluated under the alternative rating scheme. With an initial rating assigned following a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The February 2009 VA audiological examination report shows the greatest degree of hearing loss disability. This report reveals that the Veteran had a puretone threshold average of 49 decibels in the right ear and 48 decibels in the left ear. He had right ear speech discrimination of 96 percent and left ear speech discrimination of 92 percent. Using Table VI, these findings are equivalent to Level I hearing loss in each ear. Considering Table VII, when there is Level I hearing loss in one ear and Level I hearing loss in the other ear a noncompensable rating is the maximum rating for assignment under the schedular criteria. 38 C.F.R. § 4.87(a), Code 6100. Accordingly the Veteran is not entitled to a compensable rating for his bilateral hearing loss disability. The July 2005 VA audiological examination report also indicates that the Veteran had Level I hearing in both ears and therefore also only met the criteria for a noncompensable rating. With regard to the Veteran's report that VA provided him with hearing aids, the Board notes that whether a hearing aid has been prescribed is not considered in the criteria for the rating of hearing loss. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under 38 C.F.R § 3.321(b)(1), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made. Here, the rating criteria reasonably describe the Veteran's symptoms and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Additionally, the governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R § 3.321(b)(1) (2012). The record does not reflect that the Veteran has required any hospitalizations for his hearing loss or that such has markedly interfered with his employment or daily activities, beyond what is contemplated in the rating schedule. As shown above, the disability picture for the Veteran's service-connected bilateral hearing loss has not met the criteria for a compensable rating at any time since the grant of service connection. See Fenderson. Therefore, an initial compensable rating for bilateral hearing loss is not warranted. ORDER An initial compensable evaluation for bilateral ear hearing loss is denied. REMAND The Veteran seeks service connection for degenerative changes of the cervical spine. At his April 2012 hearing the Veteran testified that he injured his neck when he was tackled while playing football in service. He also stated that his chiropractor had told him that his cervical spine disability is caused by his service-connected knee disabilities. He asserted that he is entitled to service connection for degenerative changes of the cervical spine as secondary to his service-connected bilateral knee disabilities. Although the Veteran was provided a VA orthopedic examination of the cervical spine in July 2005, the examiner did not provide an opinion as to whether the Veteran's current cervical spine disability is related to service or to a service-connected disability. Accordingly, a new VA medical examination that includes medical opinions should be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In regard to the new theory of entitlement to service connection for cervical spine disability based on secondary service connection, the Veteran should also be provided with complete notice as required by the VCAA. The Veteran asserts that he developed a bipolar disorder (claimed as anxiety, manic depressive disorder, depression, sleepiness, and obsessive compulsive disorder) due to service. Although the service treatment records are silent to any psychiatric disability, the Veteran's June 1978 separation examination report reveals that the Veteran reported excessive worry and depression. A June 2006 VA outpatient treatment record also notes that the Veteran admitted to taking valium intermittently for 28 years. The Veteran has not been provided a VA psychiatric examination to determine the etiology of his current psychiatric disability. Because there is a current diagnosis of various psychiatric disorders, including bipolar disorder and anxiety disorder, given that he had complaints of excessive worry and depression on separation from service, and given that the Veteran asserts that his current psychiatric problems have continued ever since service, a VA medical examination and medical opinion should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The Veteran contends that he has GERD due to his bipolar disorder, which he asserts is due to service. Consequently, the issue of service connection for GERD must be remanded, because it is inextricably intertwined with the outcome of the other claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided an appropriate VCAA notice letter in regard to his claim for service connection for degenerative changes of the cervical spine, including as secondary to service-connected disability. The notice letter should include an explanation as to the information or evidence needed to establish a claim for service connection on a secondary basis. 2. After obtaining the necessary authorization from the Veteran, request copies of the Veteran's treatment records from his chiropractor dated from February 12, 2010 to present. 3. When the above development has been accomplished, afford the Veteran a VA examination of the cervical spine. The claims folder must be provided to the examiner for review in connection with the examination. The examiner should provide an opinion as to whether the Veteran's current cervical spine disability is at least as likely as not related to service. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not that any cervical spine disability was caused or aggravated by the Veteran's service-connected right and left knee disabilities. A rationale for all opinions should be provided. 4. Afford the Veteran a VA psychiatric examination. The claims folder must be provided to the examiner for review in connection with the examination. The examiner should provide diagnoses of all psychiatric disability present. The examiner should discuss the Veteran's psychiatric history, including the reported depression and excessive worry at the time of separation from service, and provide an opinion as to whether any psychiatric disability currently present is at least as likely as not related to service. A rationale for all opinions should be provided. 5. Thereafter, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim, and the Veteran should be given an opportunity to respond prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs