Citation Nr: 1801370 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 07-09 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to a compensable initial disability rating for service-connected bilateral hearing loss. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Dr. A.R. ATTORNEY FOR THE BOARD K. Hubers, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated December 2004 and April 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. During the course of the appeal, jurisdiction over the Veteran's case was transferred to the Manila RO in the Republic of the Philippines. In January 2015, the Veteran presented sworn testimony during a personal hearing in Manila, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. The Veterans Law Judge who conducted the January 2015 Board hearing has retired and is unavailable to participate in a decision on the merits of the Veteran's claims. He was notified of this fact and his right to request an additional hearing. See October 2017 Notice Letter. The Veteran has not elected to have another hearing, so the Board may proceed to the merits of his claims. In April 2015, the Board remanded the above-listed claims for additional development and readjudication by the RO. There has been substantial compliance with the Board's remand instructions, so the claim is ready for disposition on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Veteran's claim of entitlement to service connection for hypertension was denied in September 2015, and he timely appealed. In March 2017, the RO issued a Statement of the Case. That same month, the Veteran requested additional time to submit his substantive appeal. However, to date, the Veteran has not perfected his appeal of that issue, so it is not before the Board. FINDINGS OF FACT 1. Audiometric testing establishes that the Veteran has, at worst, level I hearing in his right ear and level II hearing in his left ear. 2. The Veteran had a low back injury during active military service, he has a current low back disability, and it is at least as likely as not that his current low back disability is related to his military service. CONCLUSIONS OF LAW 1. The criteria for an initial, compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. I. Increased Rating: Hearing Loss The Veteran is appealing the original assignment of a disability evaluation for bilateral hearing loss following award of service connection, so the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. 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 considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Also, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings for hearing loss generally must be based on objective audiometric testing of puretone threshold averages and controlled speech discrimination testing (Maryland CNC) by a state-licensed audiologist. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85(d), the puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. These averages, together with the speech recognition ability, are combined pursuant to 38 C.F.R. § 4.85, Table VI, to obtain a Roman numeral designation. In some circumstances, the rating specialist may use Table VIa instead of Table VI. Specifically, Table VIa may be used where the examiner certifies that use of the speech discrimination test was not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Also, in cases presenting exceptional patterns of hearing impairment, a rating specialist may use Table VIa. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment include circumstances where the hearing thresholds are 55 decibels or more in each of the four frequencies from 1000 to 4000 Hertz or where a veteran has a hearing threshold of less than 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. As noted above, disability ratings for hearing loss are generally based on objective testing by a state-licensed audiologist. The record contains no evidence that the Veteran is a licensed audiologist or has commensurate training, and, moreover, he has not provided any audiometric testing results of his own. For these reasons, the Board finds that his assertions are not competent evidence of his degree of hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered his subjective complaints in light of the medical evidence of record. The Veteran has undergone several audiological evaluations during the appeal period. At the March 2005 VA examination, the Veteran had average hearing thresholds of 54 Hz (right) and 53 Hz (left) with speech discrimination scores using the Maryland CNC word list of 92 percent in both ears. The Veteran's hearing loss is not considered an exceptional pattern of hearing impairment under 38 C.F.R. §§ 4.86(a) or (b). Where there is not an exceptional pattern of hearing impairment, VA will use Table VI to calculate a Roman numeral. Using Table VI, the Roman numeral designation for the right ear is level I hearing and for the left ear is level I hearing. Using those Roman numeral designations and Table VII to obtain a percentage evaluation would result in a noncompensable rating for the Veteran's bilateral hearing disability. See 38 C.F.R. § 4.85, Table VII. The record also contains the results of a September 2005 and September 2010 audiograms. Neither of the audiological evaluations including speech recognition scores using the Maryland CNC word list, so are not adequate for rating purposes. The Board notes that the recorded hearing thresholds are similar to the March 2005 and August 2015 VA examinations which are adequate for rating purposes. At the most recent, August 2015 VA examination, the Veteran reported difficulties in understanding normal conversational speech, including with his co-workers. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (a VA audiologist must fully describe functional effects of a hearing loss disability). He had average hearing thresholds of 53.75 Hz (right) and 61.25 Hz (left) with speech discrimination scores using the Maryland CNC word list of 96 percent (right) and 92 percent (left). The Veteran's hearing loss is not considered an exceptional pattern of hearing impairment under 38 C.F.R. §§ 4.86(a) or (b). Where there is not an exceptional pattern of hearing impairment, VA will use Table VI to calculate a Roman numeral. Using Table VI, the Roman numeral designation for the right ear is level I hearing and for the left ear is level II hearing. Using those Roman numeral designations and Table VII to obtain a percentage evaluation would result in a noncompensable rating for the Veteran's bilateral hearing disability. See 38 C.F.R. § 4.85, Table VII. In summary, the results of audiological testing indicate, at most, there is level I hearing in the right ear and level II hearing in the left ear. These results do not warrant a compensable rating. As indicated above, ratings are derived from a mechanical application of the applicable rating criteria. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The greater weight of the medical evidence is against granting a compensable disability rating for the Veteran's bilateral hearing disability during any portion of the appeal period. The evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record; notably, the Veteran reported current employment at his most recent VA examination, and this case accordingly does not raise a claim for a total disability rating based upon individual unemployability. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Rice v. Shinseki, 22 Vet. App. 447 (2009) (regarding total disability rating claims raised in the context of an increased rating claims). Accordingly, the Veteran's claim for a compensable rating for bilateral hearing loss is denied. II. Service Connection: Low Back Disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service disease or injury and the current disability. See Shedden v. Prinicipi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's service treatment records document a low back injury in 1986 with complaints of low back pain continuing for over three weeks. See June 1986 Chronological Record of Medical Care (including two entries documenting report of initial injury and continuing pain and functional limitations). Additionally, in a September 1988 Report of Medical History, the Veteran endorsed "recurrent back pain." The examiner noted that the Veteran had low back pain after lifting which was asymptomatic. See September 1988 Report of Medical History. These in-service medical records establish an in-service injury. There are numerous medical records establishing that the Veteran has a current low back disability. See, e.g., October 2005 Private Orthopedic Examination Report (diagnosing chronic disc herniation and resultant bilateral radiculitis); August 2015 Disability Benefits Questionnaire (diagnosing degenerative disc disease and related sciatica); March 2016 Private Medical Opinion (noting diagnosis of herniated lumbar disc); March 2017 Disability Benefits Questionnaire (noting diagnosis of degenerative disc disease). A current disability has been established. Therefore, the only element in question is whether the current disability is etiologically related to the in-service injury. The Board finds that the evidence is at least in equipoise on that issue. There are multiple opinions in favor of finding a nexus between the in-service back trouble and the current back disability. In an October 2005 report, the Veteran's private treating physician opined that the Veteran's chronic herniation of the L4/5 disc was related to the in-service injury. Specifically, he opined: "As a result of lifting heavy motors at the U.S. Navy, this patient sustained a ruptured herniated disc that progressed to date, involving both lower extremities with neurological symptoms." He later specified that he was referring to the document 1986 injury during the Veteran's service and indicated that the condition was not diagnosed at the time because no imaging studies were performed until after the Veteran was discharged. At the Veteran's January 2015 Board hearing, Dr. A.R. provided a positive nexus opinion relating the Veteran's in-service complaints to later problems. He acknowledged the post-service fall, but indicated that he believed that fall "could have actually aggravated the previous lumbar or lower back problem" of the Veteran. He testified that the Veteran "has been suffering from a herniated nucleus pulposus level L4-L5 and L5-S1 with a diagnosis of chronic low back pain...that could be traced all the way up to the recurrent low back pain during the time that [the Veteran] was in service." See January 2015 Board Hearing Tr. at 17. The August 2015 Disability Benefits Questionnaire (DBQ) also contains a favorable nexus opinion. After noting the in-service complaints and subsequent medical history, the VA examiner stated that "there is sufficient evidence to suggest chronic ongoing complaint/treatment for a back condition in relation to military service." The record also includes a March 2016 private medical opinion in which the physician opined that the Veteran's "recurrent low back pain (herniated lumbar disc) is due to his nature of job in the Navy. The said condition...was sustained while serving on active duty in the U.S. Navy." The private physician provided an accurate medical history and explained why he believed the in-service complaints and post-service diagnoses were related. These positive nexus opinions, particularly when viewed together, have significant probative weight in favor of the Veteran's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is also the negative March 2017 VA examiner's opinion. The VA examiner discussed his reasoning which was based largely on a conclusion that the in-service incident was an acute injury that resolved and that there is documentation of a post-service fall that precipitated the diagnosis of the current low back disability. The examiner's opinion is well-supported and is a reasonable interpretation of the available evidence. Therefore, the Board assigns the opinion probative value. Nieves-Rodriguez, 22 Vet. App. at 304. The Board must then weight the positive opinions against the negative opinion. In doing so, the Board is mindful that the VA benefits system is "veteran friendly." The March 2017 VA examiner's opinion is not so compelling that it outweighs the alternative theory subscribed to by four different medical professionals. Rather, at best, the evidence is in equipoise regarding whether the in-service injury progressed to the current disability or, instead, resolved with a later post-service injury leading to the current disability. In these circumstances, the doubt must be resolved in the Veteran's favor. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Gilbert, 1 Vet. App. 53-56 (holding also that the benefit of the doubt applies to each material issue). The competing opinions regarding whether the Veteran's current low back disability is related to his in-service back injury leave the nexus issue in relative equipoise. Accordingly, entitlement to service connection for a low back disability is granted. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. With respect to the duty to assist, the Veteran has not alleged any deficiencies in VA's efforts to obtain relevant records. Accordingly, the Board also need not discuss VA's compliance with the duty to assist in that respect. See Scott, 789 F.3d at 1381; Dickens, 814 F.3d at 1361. The Veteran has asserted that the bilateral hearing loss claim should be remanded for an updated examination. See December 2017 Written Brief Presentation. The Veteran's representative, however, relies on his testimony at his January 2015 Board hearing that he had recently been fitted with hearing aids due to worsening hearing. Partly based on that testimony, the Board remanded the matter for a VA examination which was conducted in August 2015. There is no subsequent evidence indicating that the Veteran's hearing has further worsened since that particular examination. The VA treatment records since that time do not indicate treatment for or evaluations that suggest worsened hearing. The examination of record is only a little over two years old and showed very little change in hearing thresholds from the examination 10 years before that. On this record, the standards for obtaining an updated VA examination to assess the Veteran's hearing have not been met. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that an updated examination was warranted where the veteran had asserted a worsening since the prior Board decision and the most recent examination was four years old). The Veteran also suggested that remand of the low back disability claim would be warranted if it was not granted. See December 2017 Written Brief Presentation. Because the Board has granted that claim, the Veteran could not benefit from further remand and no discussion of his arguments in support of remand is necessary. Finally, the Veteran has not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. ORDER Entitlement to a compensable initial disability rating for service-connected bilateral hearing loss is denied. Entitlement to service connection for a low back disability is granted. ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs