Citation Nr: 18148673 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 13-24 481 DATE: November 8, 2018 ORDER Entitlement to an increased rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for emphysema and chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for a gastrointestinal disorder is remanded. FINDING OF FACT The Veteran’s hearing impairment is no worse than Level II in the right ear and Level II in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1968 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of June 2011 and June 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In his August 2013 substantive appeal the Veteran requested that he be afforded a hearing before a member of the Board. The Veteran was scheduled for his requested hearing. However, in an September 2018 statement, the Veteran withdrew his request for a hearing in writing. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of 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. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased rating for bilateral hearing loss disability The Veteran has asserted that his hearing loss is worse than currently rated. He filed his claim for an increased rating in April 2012. Disability ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule contains eleven auditory acuity levels, designated from Level I through Level XI. 38 C.F.R. § 4.85(h), Tables VI, VIA (2018). The results of the puretone audiometry tests and speech discrimination tests are charted on Table VI, or on Table VIA for exceptional cases described in 38 C.F.R. § 4.86. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids. The rating criteria also provides for rating exceptional patterns of hearing impairment when the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (2018). In such cases, each ear is evaluated separately, and the Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIA, whichever results in the higher numeral. Id. When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the assigned numeral is elevated to the next higher Roman numeral. Id. Upon review of the record, the Board finds that a compensable rating is not warranted at any point during the period under review. The Board has reviewed and considered the Veteran’s assertions with respect to the functional impairment caused by his hearing loss, including difficulty understanding people in the presence of background noise, and difficulty understanding when multiple people are talking at the same time. See Martinak v. Nicholson, 21 Vet. App. 447, 454-56 (2007). However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment. Moreover, 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Veteran was afforded a VA audiology examination in May 2012. At that time, the Veteran reported worsening of his hearing difficulty. Audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 AVG. Right 30 30 30 35 31 Left 30 25 15 35 26 Speech recognition ability was measured at 88 percent in the right ear and 88 percent in the left ear. The examiner diagnosed normal to moderately-severe bilateral sensorineural hearing loss. Applying the values to the rating criteria results in a numeric designation of Level II in the right ear and Level II in the left ear. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating. The Veteran was afforded a VA audiology examination in March 2013. Audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 AVG. Right 20 30 35 45 33 Left 30 30 20 45 31 Speech recognition ability remained at 88 percent in the right ear and 88 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss. Applying those values to the rating criteria results in a numeric designation of Level II in the right ear and Level II in the left ear. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 continues to produce a 0 percent rating. There are no other audiogram reports of record showing the Veteran to have hearing impairment worse than that reflected at his VA audiology evaluations in May 2012 or March 2018. The Veteran’s bilateral hearing loss disability has not been shown to be worse than Level II in either ear. Those results fall within the criteria for a 0 percent rating. Therefore, the criteria for an increased rating have not been met at any point during the period on appeal. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2018). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for emphysema and COPD 2. Entitlement to service connection for a gastrointestinal disorder The Veteran contends both his COPD and gastrointestinal disabilities are due to Agent Orange. He has also asserted that his gastrointestinal disorder was caused or aggravated by his service connected psychiatric disability/schizophrenia. A March 2018 VA examiner did not provide a rationale for the opinion that the Veteran’s mental health disabilities did not aggravate his gastrointestinal conditions. The March 2018 VA examiner also did not address the Veteran’s claim for direct service connection for gastrointestinal disorder due to Agent Orange exposure. In addition, no opinion was requested or obtained on the Veteran’s claim for service connection for COPD, to include as due to Agent Orange exposure. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his COPD and/or gastrointestinal disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, send the claims file to an appropriate VA examiner to obtain an opinion as to whether the Veteran’s gastrointestinal disabilities, to include gastroesophageal reflux disease (GERD/gastritis and/or esophagitis) are possibly related to service or to a service-connected disability. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the examiner should provide an opinion as to whether: (a) it is at least as likely as not (50 percent probability or greater) that any current gastrointestinal disability is etiologically related to exposure to Agent Orange/herbicide agent exposure. A rationale for all opinions expressed should be provided. (b) If not related to Agent Orange, is it at least as likely as not that any of the Veteran’s GI conditions are worsened beyond natural progression (aggravated) by his service-connected mental health disability? Please explain why or why not. If the examiner finds that the Veteran’s GI conditions were aggravated by his service-connected psychiatric disability, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the gastrointestinal disability. 2. Schedule the Veteran for a pulmonary examination to determine the current nature of his disability and to obtain an opinion as to whether the condition is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s emphysema / COPD is related to service, to include Agent Orange exposure. A rationale for all opinions expressed should be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis