Citation Nr: 1802064 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-34 152A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran had active service from October 1962 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction was currently transferred to Indianapolis, Indiana. The issues of entitlement to service connection for peripheral neuropathy of the left lower extremity and peripheral neuropathy of the right lower extremity 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's bilateral hearing loss has been manifested by no worse than Level II hearing impairment in the right ear, and no worse than Level III hearing 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. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in a letter sent to the Veteran in June 2010. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records are associated with the claims file as are records associated with his claim for disability benefits from the Social Security Administration (SSA). VA provided relevant examinations as discussed in further on in the decision. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Increased Rating - Bilateral Hearing Loss Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. As the evidence described below shows, neither of the patterns are present in this case. In describing the evidence the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran seeks an initial compensable rating for bilateral hearing loss. By way of background a February 2011 rating decision granted a noncompensable rating for bilateral hearing loss and assigned an effective date of August 28, 2009. The effective date is the date of claim. For the following reasons, the Board finds that the Veteran's bilateral hearing loss symptoms most closely approximate a non-compensable evaluation under Diagnostic Code 6100, but no higher, since the award of service connection. See 38 C.F.R. § 3.385. Pertinent evidence associated with the claims file includes VA examination reports dated in October 2010 and January 2014 and treatment records. The October 2010 VA audiological examination revealed pure tone thresholds in the Veteran's right ear of 15, 15, 45, and 55 decibels, at 1000, 2000, 3000 and 4000 Hertz. Pure tone thresholds in the Veteran's left ear of 20, 15, 50, and 50 decibels, at 1000, 2000, 3000 and 4000 Hertz. The Maryland CNC speech recognition score was 92 percent in the right and left ears. Using Table VI, the Veteran's October 2010 examination results revealed Level I hearing in each ear. Combining these levels according to Table VII results in a noncompensable rating. The examination report also reflects the Veteran reported working in a factory and utilizing hearing protection for most of his employment. The examiner concluded that hearing loss had no impact on the Veteran's employment. The January 2014 VA audiological examination revealed pure tone thresholds in the Veteran's right ear of 25, 25, 50, and 55 decibels, at 1000, 2000, 3000 and 4000 Hertz. Pure tone thresholds in the Veteran's left ear of 25, 25, 50, and 50 decibels, at 1000, 2000, 3000 and 4000 Hertz. The Maryland CNC speech recognition score was 84 percent in the right ear and 80 percent in the left ear. Using Table VI, the Veteran's January 2014 examination results revealed Level II hearing in the right ear and Level III hearing in the left ear. Combining these levels according to Table VII results in a noncompensable rating. The January 2014 examination report indicates the examiner concluded that hearing loss impacts the Veteran's ability to work describing the Veteran's reported difficulty hearing and understanding conversation in noisy environments. Post-service private treatment records include two private audiograms conducted in May 2009 by Saint John's Health System and June 2013 by Optiview Vision & Hearing Service. The reported speech discrimination scores for the May 2009 and June 2013 private audiograms show that the audiologist did not use the Maryland CNC test but rather a different word list to obtain speech recognition scores. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his bilateral hearing loss condition. During the Board hearing the Veteran testified to having difficulty picking up conversation, especially when others around are also conversing, hearing the television, and hearing his cell phone ring. He provided an example explaining that when his phone is programmed to the maximum volume he is unable to hear the sound. Instead, his phone remains programmed on vibrate in order to alert him of incoming calls. Here, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The Board assigns the October 2010 and January 2014 VA examiner's opinion significant probative weight because it was based on a full examination of the claims folder, fully addressed the Veteran's in-service symptoms and contentions, and was supported by an adequate and persuasive rationale. As discussed above, examinations were provided to ensure that the record reflects the current extent of the disability, and these findings are responsive to the pertinent rating criteria. In sum, the Veteran is not entitled to a compensable rating for his hearing loss. The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss. With respect to the May 2009 and July 2013 private audiograms, the Board finds the evidence is inadequate to rely upon in this case. Specifically, as discussed above, the private audiograms show that the audiologist did not use the Maryland CNC test but rather a different word list to obtain speech recognition scores. 38 C.F.R. § 3.385 (2017). It must be emphasized, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent VA audiology studies of record. In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C.§ 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of a disability rating higher than the initial noncompensable rating assigned for the Veteran's bilateral hearing loss throughout the entirety of the rating period. Hart v. Mansfield, 21 Vet. App. 505 (2008). Extraschedular and TDIU Consideration The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. In this regard, the Board notes that the availability of higher schedular ratings plays no role in an extraschedular analysis and that it is inappropriate for the Board to deny extraschedular referral on this basis. The Board finds that the Veteran's symptoms of bilateral hearing loss, are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case neither the claimant nor the record has raised the question of unemployability due to service-connected disability. Therefore no further discussion of a TDIU is necessary. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMAND After a review of all evidence, both lay and medical, the Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the underlying claims for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities to include obtaining a medical opinion. The Veteran seeks service connection for bilateral peripheral neuropathy, as secondary to diabetes mellitus. During the Board hearing the Veteran testified that he underwent test to determine the etiology of a burning sensation in his legs and feet. On examination he reported that he was told his reflexes resembled that of a 99 year old man. He further stated that he took these records to the VA and provided them to the doctor who performed the tests. He stated that the doctor reviewed the records and informed him that he would need to be tested immediately. The Veteran's testimony also related the claimed nerve condition to service in Vietnam due to the rain and heat. He further stated that he has not been informed by a medical professional that he has peripheral neuropathy and he was also unaware that service connection was established for diabetes mellitus. By way of background, a February 2011 rating decision denied service connection for peripheral neuropathy of the bilateral lower extremities, noting that a January 2011 electromyogram (EMG) study was normal. At the time of the February 2011 rating decision, service connection was not established for diabetes mellitus. In a June 2017 rating decision, the RO granted service connection for diabetes mellitus on a basis of presumption due to Agent Orange exposure and assigned a 20 percent rating effective December 13, 2016. An August 2017 rating decision confirmed this determination. Turning to the evidence, the Board notes that the claims file includes a December 2004 private neurology report from Dr. J. Zhang of Community Hospital, which identified mild peripheral polyneuropathy of the bilateral lower extremities. Additionally, a February 2008 EMG report from Community Hospital, Indiana indicates a history of left leg tingle, an indication of lumbar radiculopathy, left leg paresthesias, and symptoms of shoulder pain and lumbar radiculopathy. The resulting report identified mild degenerative changes and probable right renal calculi. A letter dated in August 2005 from a private clinician of Heart Partners of Indiana, notes that the Veteran has had occasional chest discomfort explained as fleeting in nature radiating down the left arm. It was explained that at one time he was considered to have a neuropathy as best as they could tell. The clinician noted that the Veteran was seeing Dr. Zhang for neurology about a year ago when he was having episodes of feeling a "burning all over" sensation that was evanescent in nature and apparently migrated from place to place about his body. The clinician concluded that "it was very ill-defined in nature" and does not believe that a specific etiology was ever determined. An October 2010 VA PTSD DBQ shows the examiner documented that the Veteran was diagnosed with peripheral sensory motor polyneuropathy (according to a record the Veteran presented from an EMG report from Dr. J. Zhang of Central Indiana Neurology dated in February 2008). It is noted that he had pain in the right shoulder but the Veteran reported pain all over his body and that he has borderline diabetes not treated with medication. A December 2010 Agent Orange examination report indicates the examiner documented that the Veteran submitted two private EMG reports dated in 2004 and 2008, which revealed polyneuropathy. A January 2011 EMG consult shows the Veteran was referred for EMG resulting from an Agent Orange examination. It is noted that he had two previous EMG's done in the past. The consult further notes that "Per the AO examiner" private records dated in February 2008 from Central Indiana Neurology indicate peripheral sensor/motor polyneuropathy from Dr. J. Zhang and a December 2004 private treatment record from Community Health Network indicates minimal to mild peripheral neuropathy. The medical record also documents the Veteran provided a history of unsteady gait but provided no frank history of numbness of the feet or hands instead he reported feeling cold. The January 2011 EMG study was noted to be normal with findings of bilateral tibal motor with normal distal latencies and amplitudes; bilateral peroneal motor nerves with normal distal latencies; right normal sensory nerve with normal distal latency; and left sural sensory nerve with borderline normal distal latency. The January 2011 VA clinician also noted that the private EMG reports dated in December 2004 and February 2008 were not available for comparison as the Veteran advised he provided the copies of the EMG reports to the examiner who performed the Agent Orange examination. A July 2017 diabetes mellitus VA Disability Benefits Questionnaire (DBQ) indicates a medical opinion was obtained to determine whether the specific conditions of renal disease, hypertension, and erectile dysfunction are related to service-connected diabetes mellitus. The resulting examination report indicates the examiner concluded there were no other physical findings, complications, conditions, signs, or symptoms related to these diagnoses. In that examination report the examiner noted that the Veteran had a history of peripheral neuropathy of uncertain etiology prior to his onset of diabetes. The examiner stated that with no symptomatic worsening since, it is unlikely that his peripheral neuropathy is related to his diabetes. This is evidence relevant to the question of whether the Veteran's peripheral neuropathy was caused or aggravated by his service-connected diabetes mellitus. The AOJ has not issued a supplemental statement of the case since that VA examination on the issue of entitlement to service connection for peripheral neuropathy of the lower extremities. Therefore, it would be premature for the Board to adjudicate the appeal. Moreover, the July 2017 examiner stated that it was unlikely that the peripheral neuropathy was related to the diabetes. "Unlikely" is best construed as meaning not likely. The evidentiary standard for granting service connection does not require that a preponderance of the evidence. Rather it requires that the evidence only be in equipoise. Hence, the July 2017 statement is insufficient to adjudicate the claim. A remand is necessary for the AOJ to consider this evidence and to ensure that the Veteran is scheduled for an appropriate VA examination to determine if it is at least as likely as not that the Veteran's peripheral neuropathy of the lower extremities was caused or chronically worsened by his diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. The AOJ must obtain any outstanding records of VA treatment of the Veteran and associate them with the claims file. 2. Then, ensure that the Veteran is scheduled for an appropriate examination with regard to his peripheral neuropathy of the lower extremities. The examiner must review the claims file in conjunction with the examination. The examiner must accomplish the following: a) Identify any neurological abnormality of either lower extremity present during any part of the period on appeal. The practitioner is directed to review the December 2004 and February 2008 private EMG reports, the August 2005 statement from the clinician of Heart Partners of Indiana, and the January 2011 VA EMG report. (b) Provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any neurological abnormality of either lower extremity had onset during active service or was caused directly by his active service. (b) Provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any neurological abnormality of either lower extremity was caused by his diabetes mellitus. (c) Provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any neurological abnormality of either lower extremity has been chronically worsened (aggravated) by his diabetes mellitus. The examiner must provide a rationale to support any and all conclusions reached. 3. Then readjudicate the claims of entitlement to service connection for peripheral neuropathy of each lower extremity, to include as secondary to the Veteran's service connected diabetes mellitus, taking into consideration all relevant evidence added to the claims file since the May 2017 SSOC was issued, in particular the AOJ must consider the July 2017 VA DBQ examination with regard to diabetes mellitus and the results of any examination conducted pursuant to this remand. If service connection for peripheral neuropathy of either or both lower extremities remains denied then furnish to the Veteran and his representative a supplemental statement of the case and allow for an appropriate opportunity to respond thereto before returning the case to the Board, if otherwise in order The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs