Citation Nr: 1606394 Decision Date: 02/19/16 Archive Date: 03/01/16 DOCKET NO. 09-32 203A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder secondary to service-connected disability. 2. What evaluation is warranted for right ear hearing loss from February 27, 2006 to May 9. 2013? 3. Entitlement to an increased evaluation for a bilateral hearing loss since May 10, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to June 1993. He was discharged under other than honorable conditions. In a September 1994 administrative decision the appellant was found by VA to have served honorably. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office in New York, New York. In a December 2014 rating decision the Appeals Management Center granted entitlement to service connection for left ear hearing loss. As such, the hearing loss claim has been bifurcated as indicated on the title page. Following review of the record, the issue of entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT 1. Between February 27, 2006 and May 9, 2013, the Veteran's right ear hearing loss was no worse than a Level I hearing loss. 2. Since May 10, 2013, the Veteran's bilateral hearing loss is not shown to be worse than Level I bilaterally. CONCLUSIONS OF LAW 1. Between February 27, 2006 and May 9, 2013 the criteria for an initial compensable evaluation for right ear hearing loss were not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2015). 2. Since May 10, 2013, the criteria for an initial compensable evaluation for a bilateral hearing loss have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the VCAA have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed.Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the claim for a higher rating for right ear hearing loss would serve no useful purpose. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to evaluate the claim of entitlement to a compensable rating for right ear hearing loss. Information has been secured in support of the claim and the appellant has been afforded VA examinations. The evidence taken as a whole is adequate to render a determination as to the issue under consideration to the extent possible. There is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.156(c). This claim is ready to be considered on the merits. Pertinent Law and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. In addition to the hearing loss criteria above, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa [C.F.R. § 4.85], whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels 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. 38 C.F.R. § 4.86(b). When evaluating hearing impairment which is service-connected in only one ear, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I for purposes of applying Table VII. See 38 C.F.R. § 3.383 (2015); see also 38 C.F.R. § 4.85(f) . Factual Background Review of the record discloses that the Veteran underwent an audiogram on an ear, nose and throat (ENT)/otolaryngology visit in August 2005. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 30 30 Speech audiometry revealed speech recognition ability of 92 percent in the right ear. On audiology consultation in May 2007, it was reported that the Veteran reported a decrease in hearing sensitivity since previous audiometric testing. Following evaluation, the impression was essentially mild sensorineural hearing loss on the right. On the authorized audiological evaluation in November 2007, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 25 25 30 25 26.25 Speech audiometry revealed speech recognition ability of 92 percent in the right ear. The assessment was normal to mild hearing loss. A VA compensation audiology evaluation was conducted in July 2009. The claims folder was reviewed. The examiner noted that the Veteran had submitted hearing test results from Occupational Health Center, Federal Plaza, New York that showed pure tone thresholds of 75/85/85/95 decibels at the 1000/2000/3000/4000 Hertz frequencies, respectively. The examiner stated that these test results were not obtained by an audiologist, rather the examiner found that they had been taken by an automated hearing screener, and should not be considered reliable for purposes of rating hearing disability. The audiological evaluation conducted in July 2009 showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 75 65 80 90 77.5 Speech audiometry revealed speech recognition ability of 88 percent in the right ear. Following the evaluation the examiner stated that the results should not be used for rating purposes because the test results were obtained with poor reliability because there was poor agreement between pure tone average/speech reception threshold in each ear. It was recommended that the appellant not be recalled for further audiology evaluation. A VA outpatient record reflects that the Veteran underwent audiology consultation in May 2013 where he reported a noticeable decrease in hearing since last evaluated. The results of current testing disclosed pure tone thresholds of 40/40/45/45 and 35/40/40/45 at the 1000/2000/3000/4000 Hertz frequencies in the right and left ears, respectively. Speech discrimination was 92 percent in the right ear and 96 percent in the left. Pursuant to the Board's February 2014 remand, the Veteran was once again afforded a VA audiology evaluation in May 2014. It was noted that the claims folder was reviewed. No results were reported because the examiner found that the results obtained had poor reliability even after reinstruction. There was no agreement between pure tone averages and speech reception thresholds. The examiner related that the Veteran had taken numerous examinations that were all with poor reliability. In December 2014, a VA examiner noted that it appeared that the audiometric results obtained in May 2013 were reliable. Legal Analysis The Board has carefully reviewed the VA and private audiograms and reports since February 27, 2006. It must be pointed out, however, that not only was it shown that the private audiogram noted on VA examination in 2007 was not conducted by a state-licensed audiologist, it is also not shown that it included a controlled speech discrimination test (Maryland CNC). As such, that report cannot be used for rating purposes by regulation. The record reflects that on most recent VA audiology evaluation in May 2014, the examiner did not provide any hearing impairment data because the results were unreliable. Additionally, the Board is unable to use the results obtained on VA examination in 2009 because the examiner found that the results were compromised to such extent that they should not be utilized for rating purposes. The reason provided on both occasions was that there was no agreement between the pure tone averages and speech reception thresholds. Accordingly, the Board is only left with the results obtained on VA audiology evaluations in November 2007 and May 2013 when no admonition was placed on the audiometric findings. The audiometric values obtained in November 2007 were consistent with pure tone threshold averages of 26 decibels in the right ear. With speech discrimination of 92 percent in the right ear, those clinical findings correlated to an auditory acuity numeric designation of Level I hearing impairment in both ears (See 38 C.F.R. § 4.85, Tables VI and VII) which comports with no more than a zero percent disability rating. Additionally, for the right ear, the pure tone thresholds at each of the relevant audiometric frequencies were not all 55 decibels or more, or 30 decibels or less at 1000 Hertz and 70 decibels or more at the 2000 Hertz frequency. Therefore, the appellant did not meet the criteria for a higher disability evaluation under 38 C.F.R. § 4.86(a) or § 4.86(b) for exceptional hearing impairment in the right ear in November 2007. The audiometric findings obtained in May 2013 are consistent with pure tone threshold averages of 43 decibels in the right ear and 40 decibels in the left ear. With speech discrimination of 92 percent in the right ear and 96 percent on the left, these clinical findings correlate to an auditory acuity numeric designation of Level I hearing impairment in both ears (See 38 C.F.R. § 4.85, Tables VI and VII) that comports with no more than a zero percent disability rating. Additionally, for both ears, the pure tone thresholds at each of the relevant audiometric frequencies were not all 55 decibels or more, or 30 decibels or less at 1000 Hertz and 70 decibels or more at the 2000 Hertz frequency. Therefore, the appellant did not meet the criteria for a higher disability evaluation under 38 C.F.R. § 4.86(a) or § 4.86(b) for exceptional hearing impairment in either ear in May 2013. The Board has carefully considered the Veteran's testimony and contentions attesting to more severe defective hearing. However, the evidentiary record, to include current lay and clinical evidence, preponderates against finding that hearing loss disability approximated the criteria for a higher rating at any time during the appellate term. Additionally, the Board would also point out that as noted above, multiple attempts to obtain accurate hearing data have been unsuccessful. It appears that the appellant has been exaggerating his symptoms in an attempt to manipulate the evidence to make his symptoms appear worse than they actually are resulting in the unreliable clinical findings cited above. The evaluation of hearing impairment by VA standards is calibrated on controlled speech discrimination tests, together with the average hearing threshold levels, as measured by pure tone audiometry tests. The assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed and is not amenable to subjective interpretation. See Lendenmann v. Principi, 3 Vet.App. 345. The Veteran is informed that in order for VA to process claims, individuals applying for benefits have a responsibility to cooperate with the agency in the gathering of evidence necessary to establish continuing entitlement to benefits. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). According to the rating schedule, the severity of the Veteran's hearing loss as demonstrated on reliable examinations in 2007 and 2013 is no more than zero percent disabling. Under the circumstances, the appellant is not entitled to a compensable rating for right ear hearing loss between February 27, 2006 and May 9, 2013, and not entitled to a compensable rating for a bilateral hearing loss since May 10, 2013. The claim is denied. As the preponderance of the evidence is against the claim the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 (2015); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). ORDER Entitlement to a compensable evaluation for right ear hearing loss between February 27, 2006 and May 9, 2013 is denied. Entitlement to a compensable evaluation for a bilateral hearing loss since May 10, 2013 is denied. REMAND The Veteran asserts that he has an acquired psychiatric disorder that is secondary to or has been aggravated by service-connected disability for which service connection is warranted. The Board notes that when this case was previously remanded, it was requested that the Veteran be afforded a VA neuropsychiatric examination by a neuropsychiatrist. The Board observes, however that an examination was not performed and that review of the record and an opinion in December 2014 were performed by a physician who specializes in emergency medicine. Following review of the record, the examiner merely opined that no psychiatric disorder was caused by or permanently aggravated by any service-connected disorder and that head trauma did not result in any neurologic residuals. This opinion fails to comply with the terms of the Board's remand, and hence it inadequate. Stegall v. West, 11 Vet.App. 268 (1998) (If the Board proceeds with final disposition of an appeal and the remand orders have not been complied with the Board errs in failing to ensure compliance.) Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA neuropsychiatric examination by a physician who has not previously seen him to determine whether the appellant suffers from an acquired psychiatric disorder. For each diagnosed disorder the neuropsychiatrist must opine whether it is at least as likely as not that any diagnosed psychiatric disorder is caused or permanently aggravated by any service connected disorder, to include post traumatic headaches, and to include claimed inservice head trauma. All necessary special studies or tests should be accomplished, and clinical findings must be reported in detail. The claims folder and access to Virtual VA must be made available to the examiner prior to the evaluation. The examiner must provide a detailed and complete rationale for his/her opinion, and must address other examiners' conclusions in light of the current findings. This includes VA psychiatric findings from June 2009, March 2013 and May 2015. 2. The RO must ensure that the medical report requested above fully and completely complies with this remand and all instructions. If the neuropsychiatrist's report is insufficient in any manner, or if a requested action is not taken or is deficient, the report must be returned for correction to avoid a future remand. Stegall. 3. After taking any further development deemed appropriate, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, provide the appellant and his representative a supplemental statement of the case and afford an opportunity to respond before the case is returned to the Board. 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 2014). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs