Citation Nr: 18144386 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-36 904 DATE: October 24, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for myalgia of the left lower extremity, as secondary to service connected left ankle tenosynovitis from residuals of an ankle fracture is remanded. FINDINGS OF FACT For the entire appeal period, the Veteran had no worse than Level II hearing in the right ear and no worse than Level IV hearing in the left ear. CONCLUSIONS OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1—4.14, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from September 1958 to September 1960. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for myalgia bilateral lower extremities and granted noncompensable rating for bilateral hearing loss. In May 2017, the Board remanded the claim for an initial compensable rating for bilateral hearing loss as well as service connection for myalgia of the bilateral lower extremities for additional development. In a June 2018 rating decision, the agency of original jurisdiction (AOJ) granted the Veteran’s claim for service connection for myalgia of the right lower extremity and assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Entitlement to an increased rating for bilateral hearing loss. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s service-connected bilateral hearing loss has been assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, as of May 31, 2013. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Board acknowledges private hearing evaluation from May 2013. Audiometric testing revealed a right ear speech recognition score of 92 percent with an average decibel loss of 51 decibels from 1000 to 4000 Hz. Left ear testing revealed a speech recognition score of 88 percent with an average decibel loss of 59 decibels from 1000 to 4000 Hz. Maryland CNC was not listed as one of the possible speech discrimination tests. Thus, the audiometric test was not adequate for VA rating purposes. See 38 C.F.R. §4.85(a). A remand for clarification is necessary here, however, because even if assuming that CNC exam, was used no higher rating would be warranted. These audiometry test results equate to Level I hearing in the right ear and Level II hearing loss in the left ear. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in one ear and Level II hearing in the other ear results in a noncompensable rating. Id. No exceptional pattern of hearing loss was demonstrated. The Veteran was afforded a VA audiological examination in February 2014 in connection with his claim for service connection. At that time, he reported difficulty understanding conversations in background noise. Audiometric testing revealed the following pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 40 50 65 75 58 (57.5) LEFT 40 55 70 70 59 (58.75) Word recognition testing revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. These audiometry test results equate to Level II hearing in the right and left ears. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level II hearing in one ear and Level II hearing in the other ear results in a noncompensable rating. Id. No exceptional pattern of hearing loss was demonstrated. The Veteran was afforded a second VA audiological examination in August 2017, at which time he continued to report difficulty hearing with background noise present. Audiometric testing revealed the following pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 50 60 60 70 60 LEFT 50 70 65 75 65 Word recognition testing revealed speech recognition ability of 94 percent in the right ear and 78 percent in the left ear. These audiometry test results equate to Level II hearing in the right and Level III in the left ears. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level II hearing in one ear and Level IV hearing in the other ear results in a noncompensable rating. Id. No exceptional pattern of hearing loss was demonstrated. The Board recognizes competent assertions of the Veteran and his family members. The Veteran reported he was unable to hear during group conversations, conversations with family members, telephone calls, television and mass. He reports that he must resort to closed captioning and using hearing aids for mass, turning the telephone all the way up to hear. See NOD, June 2014. Statements from the Veteran’s friend and pastor address the hearing problems and how it impacts his daily life. The Veteran’s wife also addresses the hearing problem and the impact it has on the family and his conversations with his children and grandchildren. See lay statement, June 2014. Additionally, the Veteran’s pastor statement asserts that the Veteran has less than normal verbal communicative skills attributed to his hearing loss. See Lay statement, October 2014. Lay evidence is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007); Davidson v. Shinseki, 581 F.3d.1313, 1313(Fed. Cir. Sept. 14, 2009). Due consideration has been given to the lay evidence of record. The Veteran is competent to report his subjective hearing loss, and the Veteran’s wife and friends are competent to report their observations of his condition. However, neither the Veteran nor his family is competent to report the severity of the Veteran’s bilateral hearing. The diagnosis of a condition such as hearing loss are medical questions and require medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007). Despite the foregoing, the Board acknowledges the Veteran’s belief that his bilateral hearing loss is severe enough to justify a compensable rating and observes that the VA examiners inquired as to the functional impact of such pursuant to Martinak v. Nicholson, 21 Vet. App. 447 (2007). However, even after considering such contentions, the Board finds that the criteria for a compensable rating are not met. See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court of Appeals for Veterans Claims held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional or, that are not otherwise contemplated by the assigned evaluation. Id. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. Id. (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REMAND A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Veteran was diagnosed with myalgia of the lower left extremity during the pendency of the claim, which satisfies the current disability element. In the May 2017, the Board remanded the entitlement to service connection for myalgia of the bilateral lower extremities for a VA examination to address whether his myalgia was caused, or aggravated by his service connected left ankle disability. Thereafter, a September 2017 VA examination report was obtained. The examiner noted a diagnosis of left lower myalgia. However, in the same examination, the examiner opined that “there was no pathology to render a diagnosis for the left extremity myalgia since this was already corrected by surgery except for S/P Left Ankle Fracture with Surgical Fixation which is a progression of the established diagnosis due to corrective surgery.” However, a February 2014 VA examiner diagnosed the Veteran with myalgia of the bilateral lower extremities. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). Therefore, a remand is necessary in order to obtain an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from July 2017 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the foregoing development, and following the receipt of any outstanding records, return the claims file, to include a copy of this remand to the September 2017 VA examiner for an addendum opinion. If the examiner who drafted the September 2017 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should answer the following questions: (a) With regards to the diagnosed myalgia of the left lower extremity the examiner should offer an opinion as to whether it was at least as likely as not (a 50 percent or higher probability) that such disorder was caused by his service connected left ankle tenosynovitis from residuals of an ankle fracture. (b) With regards to the diagnosed myalgia of the left lower extremity the examiner should offer an opinion as to whether it was at least as likely as not (a 50 percent or higher probability) that such disorder was aggravated by his service connected left ankle tenosynovitis from residuals of an ankle fracture. In offering such opinion, the examiner should specifically address the Veteran’s contentions that the aggravation of his left myalgia of lower extremity occurred during service. The examiner must also address the Veteran’s contentions that his service connected left ankle disability caused or aggravated his left myalgia of lower extremity. The examiner should consider all of the evidence of record, including the Veteran’s lay statements and medical records. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Iglesias, Law Clerk