Citation Nr: 18145008 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-31 227 DATE: October 25, 2018 ORDER Entitlement to a compensable rating for service connected bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for migraine headaches to include as due to exposure to herbicides is remanded. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss disability was manifested, at worst, by no more than Level I hearing acuity. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1968 to January 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A compensable disability rating for a bilateral hearing loss disability is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran’s bilateral hearing loss disability is currently rated as noncompensable. Evaluations of defective hearing range from noncompensable to 100 percent for service-connected bilateral hearing loss. These evaluations 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 as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). The Veteran was afforded a VA audiological examination in July 2011. The air conduction audiometric findings were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 70 85 LEFT 15 25 60 70 Average puretone thresholds was 55 in the right ear and 42 in the left ear. Maryland CNC word recognition score was 96 percent bilaterally. Applying the puretone threshold average and speech discrimination results of the audiological examination to Table VI, yielded a value of level II for the right ear and level I for the left ear. Applying those values to Table VII, the designations yield a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). The Veteran was afforded another VA audiological examination in February 2016. The audiometric findings were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 40 70 80 LEFT 20 30 60 70 Average puretone thresholds were 52 in the right ear and 45 in the left ear. CNC Maryland speech recognition scores were 94 percent bilaterally. Applying the puretone threshold average and speech discrimination results of the audiological examination to Table VI, yielded a value of level I for the right ear and level I for the left ear. Applying those values to Table VII, the designations yield a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). The Veteran was afforded another VA audiological examination in June 2016. The audiometric findings were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 45 70 85 LEFT 25 30 65 75 Average puretone thresholds were 59 in the right ear and 49 in the left ear. CNC Maryland speech recognition scores were 92 percent bilaterally. Applying the puretone threshold average and speech discrimination results of the audiological examination to Table VI, yielded a value of level II for the right ear and level I for the left ear. Applying those values to Table VII, the designations yield a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). In a letter dated January 11, 2011 the Veteran described his hearing as poor. During the February 2016 VA examination, the Veteran reported difficulty distinguishing words. Although the Veteran asserts that his hearing loss disability is more severe than currently rated, his statements alone cannot establish that a disability rating higher than noncompensable is warranted as ratings for hearing loss are based on the mechanical application of results of regulation-mandated audiometry. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Accordingly, the preponderance of the evidence is against the claim seeking a higher rating for bilateral hearing loss disability. Although the evidence of record shows that the Veteran clearly has a hearing loss disability as defined by VA, the evidence does not support entitlement to a higher evaluation for bilateral hearing disability impairment at any point during the appeal. The preponderance of the evidence is against the claim; there is no doubt to be resolved and a compensable rating is not warranted. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). REASONS FOR REMAND Entitlement to service connection for migraine headaches to include as due to exposure to herbicides is remanded. The Veteran contends that his migraine headaches are a result of injuries sustained while on active duty. The Board finds that further development and adjudication is necessary to comply with VA’s duty to assist the Veteran to obtain evidence needed to substantiate his claim. No examination was provided with regard to this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here the evidence establishes current migraine disability. The Veteran contends that he started experiencing migraines and received treatment for them at a VA facility in Boston, Massachusetts in the 1970’s. There is presently no medical opinion of record regarding nexus and accordingly an examination is necessary. See 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); McLendon. Additionally, there appears to have only been one attempt made by the RO to obtain the Veteran’s VA records from Boston in the 1970’s and accordingly they must make further attempts to obtain the records. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any service treatment records, and VA and/or private treatment records, pertaining to the issues on appeal, in particular any records from VA facilities in the Boston, Massachusetts area from the 1970’s. All attempts to obtain records should be clearly noted in the claim file. If records could not be obtained, then the Veteran and his representative should be notified, and this should be documented in the claim file. 2. The Veteran must be afforded an appropriate VA examination(s) to determine whether his currently diagnosed migraine headaches are related to his military service. All pertinent symptomatology and findings must be reported in detail and any indicated diagnostic tests and studies must be accomplished. The claim file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must elicit from the Veteran and record in the examination report a full history. After a review of the evidence of record, to include the Veteran’s statements, the examiner must provide an opinion as to whether any degree of the currently diagnosed migraine headaches are related to the Veteran’s military service. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. If upon completion of the above actions the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Baronofsky Associate Counsel