Citation Nr: 18148213 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 14-38 421A DATE: November 7, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss disability is denied. Entitlement to an initial increase rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for back strain is remanded. Entitlement to service connection for cervicalgia is remanded. Entitlement to service connection for right knee pain is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for hypothyroidism is remanded. FINDINGS OF FACT 1. The 10 percent rating currently in effect is the maximum schedular rating for service-connected tinnitus. 2. Throughout the pendency of the appeal, the Veteran's right ear hearing loss disability has been clinically shown to be manifested by no worse than Level I hearing impairment. 3. Throughout the pendency of the appeal, the Veteran's left ear hearing loss disability has been clinically shown to be manifested by no worse than Level I hearing impairment. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.87, Code 6260. 2. The criteria for a compensable rating for the Veteran's bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 until August 1979 and June 2008 until June 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Rating Entitlement to an initial compensable rating for bilateral hearing loss disability Legal Criteria Rating Disabilities in General Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating hearing loss Disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on 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 1,000, 2,000, 3,000 and 4,000 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 audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometric test. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85 (e). The provisions of 38 C.F.R. § 4.86 (a) provide that when the pure tone 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 numeral. Each ear will be evaluated separately. The provisions of 38 C.F.R. § 4.86 (b) provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever result provides the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. The Veteran is service connected for bilateral hearing loss disability evaluated as noncompensable. The pertinent competent clinical evidence of record includes a February 2012 VA medical examination which reflects that the Veteran's relevant pure thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 20 60 60 LEFT 10 30 45 65 On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was recorded as 37.5 decibels. His pure tone threshold average for the left ear was recorded as 36.25 decibels. His speech recognition ability was 96 percent for the right ear and 94 percent for the left ear using the Maryland CNC speech recognition test. Applying 38 C.F.R. § 4.85, Table VI to the February 2012 VA audiogram examination, the Veteran's left ear hearing loss is a Level I impairment. The Veteran's right ear hearing loss is also Level I impairment. Based on the results, the Veteran's ears are considered to be the same for VA purposes. Applying the criteria from Table VI to Table VII, a noncompensable rating evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. The Board has considered the provisions of 38 C.F.R. § 4.86, but these provisions do not apply here. Based on the above criteria, a compensable disabling is not warranted. Entitlement to an initial increase rating in excess of 10 percent for tinnitus The Veteran is contending that an evaluation higher than 10 percent is warranted for the service-connected tinnitus. Tinnitus is evaluated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify the existing VA practice that only a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. See 38 C.F.R. § 4.87, Diagnostic Code 6260. In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the United States Court of Appeals for Veterans Claims (Court) held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit), and stayed the adjudication of tinnitus rating cases affected by the Court's decision in Smith. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260, which limits a Veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. VA then lifted the stay on the adjudication of tinnitus rating cases. The Veteran has already been assigned the maximum rating of 10 percent, under Diagnostic Code 6260, and there is no legal basis upon which to award a higher or separate schedular evaluation for tinnitus. The Board has considered all arguments advanced on behalf of the Veteran and recognizes his feeling that a higher rating is warranted. Even providing full credence to the Veteran's assertions, there is no legal basis upon which to assign a higher or separate schedular evaluation for tinnitus. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). A rating in excess of 10 percent for tinnitus is not warranted. REASONS FOR REMAND Entitlement to service connection for back strain, cervicalgia, right knee pain, hypertension, and hypothyroidism is remanded. In a July 2014 VA 21-2507a, Request for Physical Examination, VA scheduled the Veteran for examinations regarding the Veteran's claims on appeal. Subsequently, in August 2014 VA cancelled the Veteran's examination request noting the Veteran cancelled the appointment due to him not being in the state on the scheduled date. Consequently, the RO issued a statement of the case (SOC), continuing its denial of the claims on appeal; in doing so, noting the Veteran's failure to report to his scheduled VA examination. Given the Veteran's reason for his failure to attend the scheduled examinations, the Board finds that there exists a good cause regarding the Veteran's failure to report to the August 2014 examinations. See Fluker v. Brown, 5. Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993). Thus, the Veteran must be afforded new VA medical examinations. See 38 U.S.C. § 1155; 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for his claimed conditions; complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's claimed back condition. The examiner must opine whether it is at least as likely as not that the Veteran has any back condition related to an in-service injury, event, or disease. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's claimed cervicalgia condition. The examiner must opine whether it is at least as likely as not that the Veteran has a cervicalgia condition related to an in-service injury, event, or disease. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's claimed right knee pain condition. The examiner must opine whether it is at least as likely as not that the Veteran has a right knee pain with functional impairment related to an in-service injury, event, or disease. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's claimed hypertension. The examiner must opine whether it is at least as likely as not that the Veteran has hypertension related to service. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's claimed hypothyroidism. The examiner must opine whether it is at least as likely as not that the Veteran has hypothyroidism related to service. 7. A clear rationale for any opinions expressed and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any of the requested opinions cannot be provided without resorting to speculation, the examiner should state so and explain why such an opinion cannot be provided. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel