Citation Nr: 1805405 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-03 280 DATE THE ISSUES 1. Entitlement to a compensable initial disability rating for bilateral hearing loss. 2. Entitlement to an initial disability rating in excess of 30 percent for fecal leakage residual from anal fistula and anal abscesses. ORDER The claim of entitlement to a compensable initial disability rating for bilateral hearing loss is denied. The claim of entitlement to a disability rating in excess of 30 percent for fecal leakage is denied. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's hearing loss was manifested by no worse than Level II hearing loss on the right and Level III hearing loss on the left, with speech discrimination scores of 86 percent on the right and 78 percent on the left. 2. The Veteran's fecal leakage manifested at a mild level described as mild seepage with occasional involuntary bowel movement, requiring changing underwear three times per day. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). 2. The criteria for an initial disability rating in excess of 30 percent for fecal leakage residual from anal fistula and anal abscesses have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code 7332 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1983 to January 1987, February 2005 to December 2005, and June 2008 to April 2009 in the United States Navy with additional service in the Navy Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, denying the claim of entitlement to an increased rating for hearing loss and granting the claim of entitlement to service connection for fecal leakage, assigning a noncompensable (0 percent) evaluation, effective as of April 14, 2009. The Veteran testified at a videoconference hearing before the Board in April 2014. A transcript of that hearing has been associated with the claims file. The member of the Board who conducted the hearing is no longer employed at the Board. The Veteran was given the option in October 2017 to attend a new hearing before a current Board member, but did not elect to attend a new hearing. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Board remanded the issues for further development in December 2014 and March 2017. The Board notes that actions requested in the prior remands have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The case has been returned to the Board for appellate review. The issue of entitlement to service connection for irritable bowel syndrome has been raised by the record in the April 2014 hearing noting abdominal pain and loose stools and in the May 2017 VA examination, in which the examiner opined that the Veteran's irritable bowel syndrome is Gulf War related. The issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Here, the Veteran's increased rating claims arise from his disagreement with the initial evaluations that were assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded). In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. VA examinations have been conducted and any necessary opinions obtained. After a careful review of the file, 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). 1. Entitlement to an initial compensable disability rating for bilateral hearing loss. The Veteran contends that his hearing loss manifests to a level that warrants a compensable disability rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating service-connected hearing loss, disability evaluations are derived from a 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 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 Hertz. To evaluate the degree of disability from bilateral service-connected defective hearing, the Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels (dB) or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the puretone threshold is 30 dB at 1000 Hertz and 70 dB or more at 2000 Hertz, the rating specialist will determine the Level 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 Level. 38 C.F.R. § 4.86(b). Each ear is considered separately. 38 C.F.R. § 4.86. The Veteran was afforded a VA examination in July 2009. At that time, the Veteran's pure tone thresholds, in dB, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 5 55 55 31 LEFT 20 15 50 55 35 Pure tone dB averages were 35 for the left ear and 31.25 for the right ear. Speech recognition scores were 98 percent bilaterally. The Veteran reported difficulty understanding speech in the presence of noise. He felt that he heard better with his left ear than his right. The findings were within normal limits in both ears for ear canal volume, static compliance, and peak pressure. The examiner diagnosed bilateral sensorineural hearing loss. Application of these findings to Table VI results in Level I hearing loss bilaterally, which equates to a noncompensable rating under Table VII. 38 C.F.R. § 4.85. The Veteran was afforded another VA examination in July 2010. At that time, the Veteran's pure tone thresholds, in dB, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 10 50 60 34 LEFT 20 15 55 60 38 Pure tone dB averages were 37.5 in the left ear and 33.75 in the right ear. Speech recognition scores were 98 percent on the right and 96 percent on the left. The Veteran complained of difficulty hearing in background noise and having to ask for repetitions. The examiner diagnosed bilateral sensorineural hearing loss. The examiner noted significant effects on the Veteran's occupation. He had difficulty hearing in noisy situations or at a distance. The examiner noted no effect on the Veteran's usual daily activities. Application of these findings to Table VI results in Level I hearing loss bilaterally, which equates to a noncompensable rating under Table VII. 38 C.F.R. § 4.85. In November 2010, the Veteran was fitted with hearing aids. During the April 2014 hearing, the Veteran described working as a supervisor on a construction site. The Veteran is in a fairly loud work environment. He uses hand gestures to communicate. He tried hearing aids, but it echoed and he could not hear anything with them. He has to put his phone on speaker to hear it better. When he watches TV, he has to watch it very loudly and the whole household hears it. In April 2017, the Veteran attended an additional VA examination. At that time, the Veteran's pure tone thresholds, in dB, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 15 55 60 38 LEFT 20 25 60 55 40 Pure tone dB averages were 40 for the left ear and 38 for the right ear. Speech recognition scores were 86 percent on the right and 78 percent on the left. The examiner was unable to obtain or maintain a seal bilaterally. The examiner diagnosed bilateral sensorineural hearing loss. The Veteran's hearing loss impacts the ordinary conditions of daily life including the ability to work. The Veteran reported communication difficulty in adverse listening situations, such as in the presence of background noise or when the speaker is at a distance. He noted that he could not understand his children and could not hear the TV. He obtained bilateral hearing aids in 2010, which he does not wear as he had more communication difficulties with them on. The examiner noted that this Veteran is expected to have communication difficulty in adverse listening situations only. Application of these findings to Table VI results in Level II on the right and Level III on the left, which equates to a noncompensable rating under Table VII. 38 C.F.R. § 4.85. The record contains no additional pure tone threshold findings during the period on appeal. Moreover, the VA examinations included the Veteran's complaints regarding his hearing and the functional impairment it causes. Thus, the examinations are adequate for evaluating his disability. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Board sympathizes with the Veteran's complaints regarding the functional impact of his hearing loss on his daily life; however, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Thus, the medical evidence of record is more probative than lay contentions as to the extent of the Veteran's hearing loss. In sum, at no point during the initial period of service connection did the Veteran's hearing loss rise to a compensable level, and the most probative evidence does not reflect that a compensable rating is warranted at any time during the period on appeal. Accordingly, the Board finds that the criteria for a compensable initial disability rating for bilateral hearing loss have not been met or approximated. 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. Entitlement to an initial disability rating in excess of 30 percent for fecal leakage residual from anal fistula and anal abscesses. The Veteran asserts that his fecal leakage warrants a disability rating in excess of 30 percent. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's fecal leakage was rated under Diagnostic Code 7332 for impairment of sphincter control of the rectum and anus. Under that regulation, complete loss of sphincter control warrants a 100 percent disability rating. Extensive leakage and fairly frequent involuntary bowel movements warrants a 60 percent disability rating. Occasional involuntary bowel movements, necessitating wearing of pad, warrants a 30 percent disability rating. Constant slight or occasional moderate leakage warrants a 10 percent disability rating. Healed or slight impairment without leakage warrants a 0 percent disability rating. 38 C.F.R. § 4.114. The question for the Board is whether the Veteran's fecal leakage manifests with extensive leakage and fairly frequent involuntary bowel movements. The Veteran was afforded a VA examination in July 2010. The Veteran noted severe daily flatulence that results in soiling his undergarments. Although the Veteran reported frequent involuntary bowel movements and severe fecal leakage, the examiner noted only mild anal or rectal stricture that was mild with no evident fecal leaking. The examiner noted that the Veteran's sphincter was not impaired. The examiner noted no feces elicited on the rectal examination. The examiner described fecal leakage residual from anal fistula and anal abscesses. The Veteran had a gastroenterology consult in November 2010. The examiner noted stricture and small hemorrhoids upon rectal examination. Digital rectal examination showed tiny fissure with no fistula or anal stricture. The examiner noted that the Veteran did not have fecal incontinence, but did have mild seepage. During the April 2014 hearing before the Board, the Veteran reported slight or occasional leakage on a daily basis. He noted only one involuntary bowel movement. He noted that he changes his underwear two to three times per day but does not use pads. He does not change his underwear at work, except for the very rare occasion. The Veteran was afforded another VA examination in May 2017. The examiner diagnosed peri-rectal abscess, anal fissure, and irritable bowel syndrome with secondary fecal leakage associated with cramping, flatulence, and loose stools. The examiner noted severe daily flatulence that results in soiling of his undergarments. The examiner noted impairment of rectal sphincter control. The examiner noted that the Veteran wore a pad and changed his pad or underwear three times daily. Examination was normal with no external hemorrhoids, anal fissures, or other abnormalities. The examiner described the Veteran's fecal leakage as mild, noting some passage of watery fecal matter occurring during flatulence. The Board finds that the Veteran's symptoms do not manifest with extensive leakage and fairly frequent involuntary bowel movements. The Veteran's symptoms were described as mild fecal leakage and mild seepage. The Veteran testified that he did not wear a pad to work and only had to change his underwear at work very rarely. He testified that he changed his underwear in the morning, after work, and before bed. He also testified that he could note only one involuntary bowel movement. The November 2010 gastroenterology consult showed no fecal incontinence. The Board acknowledges that the Veteran has additional symptoms, to include abdominal cramping, abdominal pain, urgency, frequent loose stools, and diarrhea. Those symptoms are attributable to his irritable bowel syndrome, which has been referred to the regional office for consideration of service connection in the introduction. In sum, at no point during the initial period of service connection did the Veteran's fecal leakage rise to a level that more nearly approximates a 60 percent disability rating, and the most probative evidence does not reflect that a 60 percent disability rating is warranted at any time during the period on appeal. Accordingly, the Board finds that the criteria for an initial disability rating in excess of 60 percent for fecal leakage have not been met or approximated. 38 C.F.R. § 4.85, Diagnostic Code 7332. ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel Copy mailed to: Disabled American Veteran Department of Veterans Affairs