Citation Nr: 18146542 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 07-26 459 DATE: October 31, 2018 ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent for bilateral plantar fasciitis from January 1, 2005 and in excess of 30 percent from August 29, 2017 is remanded. Entitlement to an initial disability rating for degenerative disc disease, C3-7 with prosthetic replacement of discs at C3/4 and C6/7, in excess of 20 percent from January 1, 2005 to April 22, 2008, and in excess of 30 percent from August 1, 2008 is remanded. Entitlement to service connection for allergies, to include rhinitis and sinusitis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT At worst, the Veteran has Level I hearing loss in the right ear and Level I hearing loss in the left ear. CONCLUSIONS OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to June 1984 and December 1991 to December 2004. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, in August 2018, the Veteran’s representative wrote that the Veteran had not worked since retiring from the military. As the evidence suggests that the Veteran is unemployable due to symptoms of his disabilities, the issue of entitlement to a TDIU has been raised. Rating for Bilateral Hearing Loss The Veteran asserts an increased rating for his service connected bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability 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; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. The Veteran’s bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level “V” and the poorer ear had a numeric designation of Level “VII” the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85. Regulations also provide that, in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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 numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial compensable evaluation for bilateral hearing loss. The Veteran underwent an audiological examination in April 2007, however the Board finds the examination to be inadequate as speech discrimination was not tested. During an August 2017 audiology examination, an audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 30 45 35 LEFT 10 20 25 40 40 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The audiometric findings equate to Level I hearing loss in both ears. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran’s bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, the audiological report does not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86(a), (b). There are no other audiological evaluations of record. The Board has also considered the Veteran’s lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann; Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. As such, a higher evaluation is not warranted. REASONS FOR REMAND Upon review of the record, the Board finds that the remaining issues must be remanded. The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 1. Entitlement to an initial disability rating for degenerative disc disease, C3-7 with prosthetic replacement of discs at C3/4 and C6/7, in excess of 20 percent from January 1, 2005 to April 22, 2008, and in excess of 30 percent from August 1, 2008 is remanded. The Board finds that a new examination is needed for the Veteran’s increased rating claim. The September 2017 examiner noted that no diagnostic testing had been performed on the Veteran’s neck. A September 2010 medical record reflects that an x-ray was performed on the Veteran’s neck. This factual inaccuracy renders the need for a new examination. Furthermore, an examination that takes into account retrospective findings is needed. The Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016). The final sentence of § 4.59 reads “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The other examinations on file have not met this requirement. The examination conducted on remand should include all necessary testing. 2. Entitlement to an initial evaluation in excess of 10 percent for bilateral plantar fasciitis from January 1, 2005 and in excess of 30 percent from August 29, 2017 is remanded. The Board finds that an examination that takes into account retrospective findings is needed. The only adequate piece of medical evidence regarding the Veteran’s bilateral fasciitis is an August 2017 examination. As a March 2016 Board remand found the Veteran’s November 2006 medical record to be inadequate for rating purposes, there are no other adequate medical records regarding the Veteran’s bilateral fasciitis throughout the entire appellate period. As such a new examination is needed in order to determine the severity of the Veteran’s bilateral planar fasciitis from January 1, 2005 to August 29, 2017. 3. Entitlement to service connection for allergies is remanded. The Board finds that a new examination and etiology opinion is needed for the Veteran’s allergy claim. No nexus opinion was provided with the Veteran’s September 2017 examination. The Board also finds the February 2018 opinion to be inadequate. The examiner noted that there was no allergy test in the Veteran’s file; however, the Veteran’s file contains medical records which document an allergy test in April 2007. Furthermore, neither examiner discussed the Veteran’s lay statement that his allergies condition is due extensive exposure to oil fires and chemical/munitions related to combat and combat training. Additionally, the March 2016 Board remand asked for consideration to be given to as to “whether any in-service allergic manifestations were seasonal or acute in nature that subsided on the absence of or removal of the allergen and healed without residuals.” The February 2018 examiner did not discuss this. The Court of Appeals for Veterans Claims (Court) has held “that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders.” Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, “the Board itself errs in failing to ensure compliance.” Id. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board finds that the TDIU issue is not fully developed for appellate review, as the Veteran has not been provided with notice of the laws and regulations governing TDIU. The matter must be remanded to initiate this due process. See 38 C.F.R. § 4.16. Furthermore, with regard to the TDIU claim, it is inextricably intertwined with the Veteran’s increased rating and service connection claims. The Board will defer adjudication of the TDIU claim until the development deemed necessary for the claim has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. 2. Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU. This should include sending the Veteran a letter advising him of the information and evidence needed to award a TDIU. The letter should also request that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim for a TDIU. 3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s allergies. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (probability of 50 percent or more) that the current allergies condition, to include rhinitis and sinusitis, had its onset in or is related to service? b) If an allergic condition, including bronchial asthma and urticaria, is found the examiner should discuss whether the condition was seasonal or acute in nature and subsided on the absence of or removal of the allergen and healed without residuals. See C.F.R. § 3.380 (2017). The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must comment on the Veteran’s STRs which note that he was treated for allergies in July 2004 and the Veteran’s lay statement that his allergies condition is due extensive exposure to oil fires and chemical/munitions related to combat and combat training. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Schedule the Veteran for a VA examination to ascertain the severity and manifestations of the Veteran’s cervical condition for the period from January 1, 2005 to April 22, 2008 and from August 1, 2008 to the present. The claims file should be made available to the examiner for review in connection with the examination. The examiner should provide findings as to the range of motion of the cervical spin, including flexion and extension. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the cervical spine is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also comment on the impact of the Veteran’s cervical spine on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 5. Obtain a medical opinion as to the severity of the Veteran’s bilateral planter fasciitis from January 1, 2005 to August 29, 2017. The examiner shall identify all musculoskeletal/fascia/ligament or other symptoms associated with the Veteran’s bilateral plantar fasciitis. All functional limitations resulting from the service-connected bilateral plantar fasciitis are to be identified, including whether there is any pain, weakened movement, excess fatigability or incoordination on movement of each foot. For each foot the examiner shall identify whether there is objective evidence of any marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo Achillis on manipulation that is not improved by orthopedic shoes or appliances. 6. After any necessary development and readjudication of the increased-rating claim for and service-connection claim, readjudicate the TDIU issue remaining on appeal. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel