Citation Nr: 1758037	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  10-48 565	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial compensable rating for bilateral hearing loss.

2.  Entitlement to an initial rating in excess of 20 percent for vertebral fracture, T10 compression for the period from September 2, 2014.  


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The Veteran served on active duty from September 2005 to May 2009.

These matters came to the Board of Veterans' Appeals (Board) from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for a vertebral fracture and bilateral hearing loss and assigned noncompensable ratings, effective May 28, 2009.  

In a January 2015 rating decision, the RO increased the rating for the service-connected vertebral fracture to 20 percent disabling, effective September 2, 2014.

The Veteran testified before the undersigned at a Board hearing in April 2016; the transcript is of record  

In July 2016, the Board granted a 10 percent rating for vertebral fracture, T10 compression, for the period prior to September 2, 2014.  The grant was implemented in a July 2016 rating decision.  

In a June 2017 rating decision, service connection for insomnia was granted.  This constitutes a full grant of the benefit sought on appeal.  The grant of service connection constituted a full award of the benefit sought on appeal.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  To date, neither the Veteran nor his representative submitted a jurisdiction-conferring notice of disagreement as to the down-stream elements of effective date or compensation level within the applicable time period.  Thus, these issues are not currently in appellate status.  Id.

The issue of entitlement to an increased rating for vertebral fracture, T10 compression, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran has had no worse than level I hearing loss in both the right and left ears.


CONCLUSION OF LAW

The criteria for entitlement to a compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.10, 4.85, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  No further notice is required regarding the downstream issue of a higher initial rating for bilateral hearing loss as it stems from the grant of service connection, and no prejudice has been alleged.  

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  The Board notes that the claims file contains the Veteran's VA records.  Moreover, his statements and testimony in support of the claim are of record.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  Additionally, the Veteran underwent VA examinations, which are addressed in detail below.  

As such, the Board will proceed to the merits of this appeal.

Criteria & Analysis

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  As the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10. 

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.  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.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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).  When the puretone 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.  38 C.F.R. § 4.86(b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from "I" for essentially normal acuity, through "XI" for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears.  A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI..  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

In this case, the Veteran has been assigned a noncompensable evaluation throughout the rating period on appeal.  The Board finds no basis for an award of a higher rating, as discussed below.  

In May 2009, the Veteran underwent a VA audiological evaluation.  05/02/2009 VA Examination.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
15
40
35
25
LEFT
25
35
40
20

The pure tone average in the right ear was 29 (28.75 rounded up) decibels and 30 decibels in the left ear.  Speech recognition scores were 100 percent in both ears.  Such findings translate to level I hearing in the ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.


In August 2016, the Veteran underwent a VA audiological evaluation.  08/22/2016 C&P Exam.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
10
45
35
30
LEFT
20
35
45
25

The pure tone average in the right ear was 30 decibels and 31 decibels in the left ear.  Speech recognition scores were 100 percent in both ears.  Such findings translate to level I hearing in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  

The Board acknowledges the Veteran's statements and testimony regarding his hearing loss.  Specifically, he asserts that he has been unable to hear his wife and has difficulty hearing with background noises.  He also asserts that he has to increase the volume when using the phone.  04/19/2016 Hearing Testimony at 16.  The rating criteria are intended to compensate for the impairment resulting from the hearing loss disability.  38 C.F.R. §§ 4.1, 4.85.  However, the pertinent and objective evidence of hearing impairment does not approximate the criteria for a compensable disability rating.  Lendenmann, 3 Vet. App. at 349 (noting that when VA assigns a schedular disability rating to a veteran's hearing loss, it generally is required by law to base its decision entirely on audiometric testing results); 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100.  

Applying the audiologic test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable disability rating for bilateral hearing loss disability.  Thus, there is no reasonable doubt to be resolved.  

The United States Court of Appeals for Veterans Claims (Court) recently discussed extraschedular consideration in the context of bilateral hearing loss:

[T]he Court holds that the [schedular] rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure.  Thus, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.  However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech.

Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (emphasis added).  The Court further noted that "a hearing loss claimant could provide evidence of numerous symptoms, including-for purposes of example only-ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects."  Id. at 371.

In the decision here on appeal, the Board notes that the 2016 VA examination report reflects minimal work-related communication problems due to his hearing loss because hearing is not required for most tasks.  Again, he reported problems hearing his wife, requiring a higher volume on the television, and difficulty understanding in crowds.  While acknowledging the functional effects and limitations associated with his hearing loss, in consideration of Doucette, the Board finds that the schedular rating contemplates the effects of the Veteran's service-connected bilateral hearing loss as they are related to functional effects of decreased hearing and difficulty understanding speech from his spouse and in crowds.  

In summary, for the reasons and bases expressed above, the Board has concluded that a compensable initial rating is not warranted for bilateral hearing loss and the benefit of the doubt is not applicable.  Accordingly, the benefit sought on appeal is denied.


ORDER

An initial compensable rating for bilateral hearing loss is denied.


REMAND

In the prior remand, the Board instructed that the examiner describe the extent of additional limitation of motion due to flare-ups, to include a discussion of flare-ups described by the Veteran at his April 2016 Board hearing.  The July 2016 examination acknowledged flare-ups but did not include an estimate of additional limitation of motion in degrees of lost motion.  Moreover, no sufficient explanation was provided for failure to do so.  Accordingly, another examination should be provided.  Moreover, in Correia v. McDonald, 28 Vet. App. 158 (2016), it was held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  The examination provided on remand should comply with the requirements of Correia to the fullest extent possible.  

On remand, associate updated VA treatment records for the period from August 23, 2016.  See 03/04/2017 LCMD, CAPRI.

Accordingly, the case is REMANDED for the following actions:

1.  Associate with the claims folder updated VA treatment records for the period from August 23, 2016.  

2.  Schedule the Veteran for an orthopedic examination with an examiner with appropriate expertise to assess the severity of his vertebral fracture, T10 compression.  The virtual folder should be made available to the examiner for review in conjunction with the examination.  Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. 

The examination of the spine should include range of motion studies.  With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups.  These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present.  The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion.  The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion.

The examiner should also describe all neurologic manifestations, to include, but not limited to bowel or bladder impairment. 

The examiner should also provide an opinion concerning how the lumbar spine disability affects his functioning and activities.  The examiner should describe the types of limitations he would experience as a result of his lumbar spine disability.  The examiner must provide a comprehensive rationale for the opinions.

3.  After completion of the above, review the relevant evidence of record and readjudicate the initial increased rating issue.  If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review.

The Veteran and his representative have 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).



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs