Citation Nr: 1637004 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 08-18 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating for degenerative joint disease at L1/L2 with annular tear at L5/S1 in excess of 10 percent from March 22, 2006, to September 27, 2008; in excess of 20 percent from September 27, 2008 to December 21, 2011; and in excess of 40 percent thereafter. 2. Entitlement to a compensable initial disability rating for bilateral hearing loss. 3. Entitlement to a compensable initial disability rating for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1984 to December 2004, including combat service, and his decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted service connection for degenerative joint disease at L1/L2 with annular tear at L5/S1, bilateral hearing loss, and hepatitis C and assigned a noncompensable disability rating for each, effective March 22, 2006. In a May 2009 rating decision, the RO increased the disability rating for the lumbosacral spine disability from noncompensable to 20 percent, effective September 27, 2008. In an October 2012 rating decision, the RO assigned a 10 percent rating for the lumbosacral spine disability effective March 22, 2006, continuing until the 20 percent rating effective September 27, 2008, and then increasing the rating to 40 percent from December 21, 2011. In the same October 2012 rating decision, the RO granted service connection for left lower extremity radiculopathy and assigned an initial 10 percent disability rating effective December 21, 2011. The Veteran was scheduled for a Board hearing in November 2009 but did not appear. The Board remanded the matter in November 2011, August 2014, and most recently in November 2015. The claim has since been returned to the Board for further appellate action. The issues of higher initial disability ratings for hepatitis C and degenerative joint disease at L1/L2 with annular tear at L5/SI being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has no worse than level I hearing in both ears. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.87, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2015). If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination. % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. (CONTINUED ON NEXT PAGE) Table VIA Numeric designation of hearing impairment based only on puretone threshold average: 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). Table VII Percentage evaluation for hearing impairment (diagnostic code 6100) Poorer Ear XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I Based on the audiological examination results discussed below 38 C.F.R. § 4.86, does not apply in this case. The Veteran has been afforded several VA audiological examinations. The Veteran's September 2008 VA audiological examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 55 50 LEFT 10 15 25 65 70 His speech recognition score was 96 percent bilaterally. Applying the results of the examination to the regulations shows level I hearing loss in both ears and does not support a compensable rating. The Veteran's December 2011 VA audiological examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 45 50 LEFT 10 5 25 70 70 His speech recognition score was 100 percent in the right ear and 98 percent in the left ear. Applying the results of the examination to the regulations shows level I hearing loss in both ears and does not support a compensable rating. The Veteran's January 2016 VA audiological examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 55 55 LEFT 15 10 20 70 75 His speech recognition score was 96 perecnt bilaterally. Applying the results of the examination to the regulations shows level I hearing loss in both ears and does not support a compensable rating. A May 2008 private audiological examination is also of record. That examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 30 40 LEFT 5 5 20 65 70 The Veteran's speech recognition score was 100 percent both ears. Applying the results of the examination to the regulations shows level I hearing loss in both ears and does not support a compensable rating. While the Board acknowledges the hearing difficulties that the Veteran reported, including difficulty discriminating speech especially when background noise is present and particularly if the speaker is on his left side, the ratings for hearing loss are based on a mechanical application of the tables provided by law. The Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann, 3 Vet. App. 345. In Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The Court's rationale in requiring an examiner to consider the functional effects of a veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted that [U]nlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra-schedular rating is warranted. The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application. Id. at 455. Under the approach prescribed by VA, if the 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. Only if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, so 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) (related factors include "marked interference with employment" and "frequent periods of hospitalization"); Thun v. Peake, 22 Vet. App 111, 115-16 (2008). The Board has considered the complaints of difficulty hearing in a noisy environment, as voiced by the Veteran. The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns, and as measured by both audiological testing and speech recognition testing. Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation. The testing is to be performed without the use of hearing aids. See 38 C.F.R. § 4.85(a). The scores represent a rating made on the worst possible objective measure of performance. His complaints concern diminished auditory acuity and speech recognition. Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria. The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). The Veteran does not have any symptoms or impairment from the service-connected hearing loss disability that are unusual or are different from those contemplated by the schedular rating criteria. The Veteran has bilateral hearing loss and this fact is acknowledged by the schedular evaluation assigned for this disorder. For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the bilateral hearing loss. In the absence of evidence that the schedular rating criteria is inadequate to rate the disability, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Veteran has also not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) In conclusion, a preponderance of the evidence is against a compensable rating for bilateral hearing loss. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in March 2006, prior to the initial adjudication of the claim on appeal. The letter informed the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The letter also addressed VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 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). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's VA treatment records. The Board notes that the private treatment records identified by the Veteran relate to treatment of his back disability and possibly his hepatitis C, but are not audiology records that are relevant to his hearing loss claim. 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. The Veteran was afforded VA audiology examinations in September 2008 and December 2011 and January 2016. The examiners, medical professionals, listened to the Veteran's assertions and performed the necessary tests. The Board finds that the examinations are adequate and contain sufficient information to decide the issue on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 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, 16 Vet. App. 183 (2002). ORDER An initial compensable rating for bilateral hearing loss is denied. REMAND In January 2012 and again in October 2012 the Veteran provided releases for the VA to obtain private treatment records for Dr. C.B. and Dr. S.P. No attempts were made by the VA to obtain those records. In its August 2014 remand, the Board ordered that the VA obtain the records identified by the Veteran. In an October 2014 letter the VA requested that the Veteran provide release forms to allow the VA to obtain relevant private treatment records. However, the letter did not explain that the release forms previously provided by the Veteran had expired, and the VA has not otherwise communicated to the Veteran that those release forms had expired and therefore the VA had not and would not be making any attempts to obtain the identified records unless new release forms were provided. Due to the lack of clarity in the VA's communications with the Veteran with respect to the private treatment records he has identified, the Board finds that he should be notified of the expiration of his previous release forms and advised that he should provide new release forms for the VA to obtain the records or he should provide the records himself. The Board notes that the private records may be particularly relevant to the Veteran's claim for a higher rating for degenerative joint disease at L1/L2 with annular tear at L5/S1 given the gaps of time between March 22, 2006, when the Veteran first filed his claim, and September 27, 2008, when he first reported for a VA examination and between that examination and his second VA examination on December 21, 2011. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter explaining that his previously provided medical release forms have expired and new forms are needed for the VA to obtain the records he has identified. Request that the Veteran provide new release forms for those records and any other private treatment records relevant to his service-connected lumbar spine disability and hepatitis C. Take appropriate measures to request copies of all records identified by the Veteran and associate those records with the claims folders. 2. After the above development has been completed, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs