Citation Nr: 18142322 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-33 841 DATE: October 15, 2018 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to a 60 percent evaluation for bilateral hearing loss is granted. REMANDED Entitlement to an evaluation in excess of 60 percent for obstructive lung disease (related to in service pleurisy) is remanded. Entitlement to an effective date prior to August 4, 2017, for a 60 percent evaluation for obstructive lung disease is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s right ear hearing loss is attributable to his active service. 2. The Veteran’s bilateral hearing loss disability is manifested by level IX hearing in both ears using Table VIa for exceptional patterns of hearing impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 2. The criteria for an evaluation of 60 percent for bilateral hearing loss are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from June 1957 to June 1960. These matters come before the Board of Veteran’s Appeals (Board) on appeal from August 2014 and September 2017 rating decisions by the Regional Office (RO). 1. Entitlement to service connection for right ear hearing loss The Veteran claims that he has right ear hearing loss that is related to his active service. He served in the Marine Corps from June 1957 to June 1960 as an jet aircraft engine mechanic. As an initial matter, based on the Veteran’s occupational specialty in service, the Board concedes high levels of noise exposure in service. The Veteran’s audiometric pure tone thresholds were not noted on entry into service. Rather, his June 1957 enlistment examination report only shows that a whispered voice test was 15/15 feet. See Service treatment records at p.29 of 43. An April 1959 service treatment record shows audiometric testing revealed pure tone thresholds as follows (converted from ASA to ISO): Hertz (decibels) 500 1000 2000 3000 4000 RIGHT 25 25 20 15 30 LEFT 30 25 25 30 30 See Service treatment records at p.21 of 43. A May 1960 separation examination report shows whispered voice testing was 15/15 feet, and pure tone thresholds were as follows (converted from ASA to ISO): Hertz (decibels) 500 1000 2000 3000 4000 RIGHT 25 20 20 15 20 LEFT 15 20 20 25 30 See Service treatment records at p.5 of 43. Post-service, the earliest record in the claims file showing hearing problems is an October 2000 VA treatment record that notes the Veteran had hearing loss. See Records, received April 2002 at p.2 of 24. A July 2014 VA audiological examination report shows pure tone thresholds were as follows: Hertz (decibels) 500 1000 2000 3000 4000 RIGHT 70 70 80 90 105+ LEFT 65 70 85 90 105+ Speech recognition scores using Maryland CNC word lists was 84 percent for the right ear. Because the Veteran’s pure tone thresholds were 40 decibels or more at any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, the Veteran is clearly shown to have right ear hearing loss for VA regulatory purposes. See 38 C.F.R. § 3.385 (2017). The July 2014 VA examiner diagnosed bilateral sensorineural hearing loss and opined that the Veteran’s right ear hearing loss is not at least as likely as not related to his active service. The examiner reasoned that because, at the time of entry into service, only the whispered voice test was used (i.e., because no pure tone thresholds were noted on entry), there was no way to confirm or deny whether a threshold shift took place during the Veteran’s active service. In other words, the VA examiner essentially opined that he was unable to provide any opinion to link the Veteran’s right ear hearing loss to his active service without his pure tone thresholds on entry. The Board notes that the VA examination report contains one typographical error in which the examiner noted the May 1960 examination showed a right ear pure tone threshold shift at 3000 hertz to 20 decibels. An August 2017 VA audiological examination was performed relating to the Veteran’s claim for an increased rating for his service-connected left ear hearing loss, but no etiological opinion was provided regarding his right ear hearing loss. The Veteran is already service-connected for left ear hearing loss because left ear hearing loss was shown during active service for VA compensation purposes (as the May 1959 audiometric testing shows thresholds of 30 decibels at 500, 3000, and 4000 hertz). Regarding the right ear, the Board acknowledges that during service, no right ear hearing loss was shown for VA regulatory purposes (because the Veteran’s right ear thresholds were not shown to be 26 decibels or greater for three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, nor 40 decibels or greater at any one of those frequencies). However, the Board has conceded that the Veteran had hazardous noise exposure based on his occupational specialty working with jet engines. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss, albeit not meeting the thresholds of 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). During his active service, the Veteran’s right ear thresholds were shown to be between 20 and 30 decibels at 500, 1000, 2000, and 4000 hertz – both in April 1959 and May 1960. As stated by the July 2014 VA examiner, the Veteran’s pure tone thresholds on entry into service are simply unavailable for comparison of his thresholds at the time of entry versus separation from service. Thus, the basis for the July 2014 VA examiner’s negative opinion was simply an inability to compare the thresholds. Because the Veteran’s right ear pure tone thresholds during service were 20 decibels or greater, which could indicate some hearing loss, and because he clearly had hazardous noise exposure in service and is already service-connected for left ear hearing loss, the Board finds that resolving all doubt in the Veteran’s favor, entitlement to service connection for right ear hearing loss is also warranted, and the claim is granted. 2. Entitlement to a compensable evaluation for bilateral hearing loss. In August 2017, the Veteran filed a claim for an increased rating for his service-connected left ear hearing loss, which is presently assigned a noncompensable rating, effective May 28, 2014. See Form 21-526EZ, August 2017. The Board notes that because service connection for his right ear hearing loss has been granted herein, the Veteran’s left ear hearing loss rating claim is more properly characterized as entitlement to an increased rating for bilateral hearing loss. As explained below, the Board has found that entitlement to an increased 60 percent rating for the Veteran’s bilateral hearing loss is warranted. An August 2017 VA audiological examination shows pure tone thresholds were as follows: Hertz (decibels) 1000 2000 3000 4000 Avg RIGHT 80 80 100 105+ 91 LEFT 75 90 105+ 105+ 94 Speech recognition scores using Maryland CNC word lists were 70 percent for the right ear, and 52 percent for the left ear. Using Table VI of 38 C.F.R. § 4.85, these audiological testing results correlate to level VII hearing in the right ear, and level VIII hearing in the left ear. Using Table VII (Diagnostic Code 6100) of 38 C.F.R. § 4.85, the combination of level VII hearing in the right ear and level VIII hearing in the left corresponds to a 40 percent rating. See 38 C.F.R. §4.85 (2017). “However, 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 roman numeral. Each ear will be evaluated separately.” 38 C.F.R. §4.86 (2017). Here, using Table VIa, the August 2017 VA audiological test results correlate to level IX hearing in both ears. Using Table VII of 38 C.F.R. § 4.85, the combination of level IX hearing in both ears corresponds to a 60 percent rating. See 38 C.F.R. §4.85 (2017). In light of the above, the Board concludes that entitlement to an increased 60 percent rating for the Veteran’s bilateral hearing loss is warranted for the entire period on appeal. In this case, the Veteran has not contended, and the evidence does not suggest, that he has experienced symptoms outside of those listed in the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board is not obligated to analyze whether referral for extraschedular consideration is warranted if 38 C.F.R. § 3.321(b)(1) is neither specifically sought by the claimant nor reasonably raised by the facts found by the Board). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 60 percent for obstructive lung disease is remanded. 2. Entitlement to an effective date prior to August 4, 2017, for a 60 percent evaluation for obstructive lung disease is remanded. The Veteran’s service-connected obstructive lung disease is currently assigned a 60 percent disability rating under Diagnostic Code 6604, effective August 4, 2017. The Veteran seeks an increased rating. See Form 21-526EZ, August 2017. The Veteran was afforded a VA examination in September 2017. Unfortunately, the pulmonary function test results in that examination report do not include his Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)), which is among the rating criteria in Diagnostic Code 6604. See 38 C.F.R. §4.97 (2017). Therefore, regrettably, the Board finds this matter should be remanded so that the Veteran may be afforded a new VA examination to include pulmonary function testing with his DLCO (SB) results. Regarding the Veteran’s claim for an effective date prior to August 4, 2017, for the current 60 percent rating for his obstructive lung disease, the Board finds that this claim is intertwined with the increased rating claim, as both involve the same period on appeal – both claims involve entitlement to higher ratings for the one-year period prior to the date the Veteran filed his increased rating claim on August 4, 2017 by way of a Form 21-526EZ. Therefore, the Board defers decision on the effective date claim pending the development directed herein for the increased rating claim. 3. Entitlement to a TDIU is remanded. The Veteran claims entitlement to a TDIU, particularly due to his service-connected obstructive lung disease and hearing loss. See Form 21-8940, April 2018; affidavit June 2018; correspondence, August 2018. The Board notes that this matter is part and parcel to his increased rating claims, and is therefore on appeal before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran submitted an April 2018 Form 21-8940 in which he identified Hadley Auto as his last employer in 1998. In July 2018, the RO requested the address for Hadley Auto from the Veteran (so as to obtain a completed Form 21-4192). In July 2018, the Veteran’s representative responded with the address, and requested that the RO obtain the completed Form 21-4192. Therefore, the Board finds this matter should be remanded so that a completed Form 21-4192 may be obtained from Hadley Auto. Also, because the Veteran’s claims for increased ratings for his service-connected obstructive lung disease are being remanded herein for further development, the Board finds that the TDIU matter is intertwined with the increased rating claims, such that a decision on the TDIU matter would otherwise be deferred. The matter is REMANDED for the following action: 1. Schedule a new VA examination to address the current severity of the Veteran’s service-connected obstructive lung disease disability. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail – pulmonary function testing must be performed, which should include DLCO (SB) results, or otherwise explain why such results are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. The examiner must consider the Veteran’s statements in his June 2018 affidavit (posted in the file on August 1, 2018) and address the effect of the Veteran’s obstructive lung disease disability on his occupational functioning. 2. Request that Hadley Auto complete a Form 21-4192 relating to the Veteran’s claim for a TDIU. Note the former employer’s mailing address provided by the Veteran in July 2018. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Juliano, Counsel