Citation Nr: 18146158 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-19 491 DATE: October 30, 2018 ORDER An initial compensable rating for left ear hearing loss is denied. REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, is remanded for additional development. FINDING OF FACT Throughout the pendency of the appeal, the Veteran’s left ear hearing loss has been manifested by, at worst, Level I hearing loss. CONCLUSION OF LAW The criteria for a compensable evaluation for service-connected left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to March 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran requested a hearing before a Veterans Law Judge in his substantive appeal. The Veteran was scheduled to testify at a Board hearing in February 2017, but did not appear for his scheduled hearing. To date, the Veteran has not requested a new Board hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d) In April 2018, the Board remanded the current issues for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions as to the issue of entitlement to a compensable initial rating for left ear hearing loss 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)). In September 2018 correspondence, the Veteran and his representative argued that the August 2018 supplemental statement of the case (SSOC) was incomplete and that a corrected SSOC should be reissued. They also requested a 30-day extension to address the new SSOC. This argument is without merit as the Board must conduct its own de novo review of the Veteran’s claims. As such, there is no prejudice or harm shown to the Veteran. In regard to service-connected left ear hearing loss, the appeal arises from the Veteran’s disagreement with the initial evaluation 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). No additional discussion of the duty to notify is therefore required. As for the Veteran’s argument that VA failed to review the medical evidence submitted, assist him in developing his claim, and that evidence he submitted was not properly considered, there is no indication in this record of a failure to notify or assist the Veteran to include affording him an examination and obtaining medical records. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015); see also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). 1. Entitlement to an initial compensable rating for left ear hearing loss. The Veteran contends that a higher rating for left ear hearing loss is warranted. He reports difficulty hearing speech at a distance or when there is background noise. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for time since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. §§ 4.85, Tables VI, VIa and VII, Diagnostic Code 6100 (2017). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Additionally, under 38 C.F.R. § 4.85(c), Table VIA will be used when the examiner certifies that use of speech discrimination is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. Here, however, the Veteran’s hearing loss does not qualify as “exceptional,” for purposes of the application of Table VIA, and thus neither 38 C.F.R. § 4.85(c), Table VIA, nor 38 C.F.R. § 4.86 will be further discussed. Where, as here, impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. See 38 C.F.R. § 4.85(f). After review of the record, the Board finds that a compensable evaluation is not warranted for the Veteran’s left ear hearing loss at any time during the period under review. At the February 2011 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average LEFT 10 15 40 35 25 RIGHT 20 10 20 15 16.25 Maryland CNC speech audiometry revealed speech recognition ability of 98 percent in the left ear and 96 percent in the right ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear, which is the same level to be used for a nonservice-connected ear, and Level I hearing loss in the left ear. When hearing loss is at Level I in the better ear and Level I in the poorer ear, a 0 percent rating is assigned under Table VII. Pursuant to the April 2018 Board remand, the Veteran was afforded an additional VA audiological examination in August 2018. At the August 2018 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 15 25 25 21 LEFT 15 20 45 45 31 Maryland CNC speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear, which is the same level to be used for a nonservice-connected ear, and Level I hearing loss in the left ear. When hearing loss is at Level I in the better ear and Level I in the poorer ear, a 0 percent rating is assigned under Table VII. Although the Board sympathizes with the Veteran’s statements regarding the functional impact of his hearing loss on his daily life, including difficulty hearing with background noise and at a distance, 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. The Board finds the February 2011 and August 2018 VA examinations highly probative, and notes that they were conducted in accordance with 38 C.F.R. § 4.85(a). Moreover, the VA examiners reported the effects of the Veteran’s hearing loss on his daily activities and occupational functioning. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, is remanded. Pursuant to the April 2018 Board remand, the Veteran was afforded a VA mental disorders examination in August 2018. At the examination, the Veteran reported that his psychiatric symptoms first began while in the military, after his deployment to Korea due to distressing events during deployment. He endorsed behavioral issues in service for the two years following deployment. The February 1981 enlistment examination report indicates that the Veteran was not considered psychiatrically normal on clinical evaluation. Service treatment records also reflect a referral for an emergency psychiatric evaluation in November 1981 after the death of his mother. The August 2018 VA examiner opined that the Veteran’s bipolar disorder did not clearly and unmistakably pre-exist service. He opined that while it was possible that the Veteran exhibited signs of mental illness prior to his entrance into the military, there existed no evidence to support a mental health diagnosis at the time. The enlistment examination did not elaborate on why the Veteran’s psychiatric history was abnormal and the separation examination did not document any psychiatric symptoms or diagnoses. To the extent that the VA examiner opined the Veteran’s psychiatric disorder did not pre-exist service, the Board finds his opinion adequate to decide the claim. As for whether the Veteran’s current bipolar disorder is related to service, the examiner opined that it was less likely than not related. He explained that the Veteran did not have any documentation of mental health treatment during service, had a normal separation examination, and he was first diagnosed with bipolar disorder approximately 20 years after discharge. Significantly, however, the examiner did not discuss whether the Veteran’s in-service symptoms were causally related to his current diagnosis of bipolar disorder, irrespective of whether he had mental health treatment during service. As the question is not whether the Veteran had treatment or a diagnosis in service, but whether the current psychiatric disabilities are related to his in-service symptoms, the Board finds that this opinion is inadequate. As such, the examiner’s rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a “medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant’s current disability and his military service.” Based on the foregoing deficiencies, an addendum medical opinion is necessary prior to adjudication of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matter is REMANDED for the following action: 1. Obtain an addendum mental disorders opinion. The Veteran’s claims file must be made available to the examiner. The need for another examination is at the discretion of the medical professional offering the addendum opinion. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should provide the following: (a.) Identify all currently diagnosed mental health disabilities. In doing so, the examiner should note that the term “current” means occurring at any time during the pendency of the Veteran’s claim; i.e., from December 2010 onward. The psychiatric disorder need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s psychiatric disability arose during service or is otherwise related to any incident of service? Please explain why or why not. In providing this opinion, the examiner should comment on the significance, if any, of the Veteran’s reports of behavioral issues following his deployment to Korea. In doing so, the examiner should address the Veteran’s assertion that these episodes represented a manifestation of his psychiatric symptoms during service. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. After completing the requested actions, and any additional action deemed warranted, readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel