Citation Nr: 18151553 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-40 663 DATE: November 19, 2018 ORDER Entitlement to an initial compensable rating for left ear hearing loss is denied. REMANDED Entitlement to service connection for lower back condition is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran has had a level I hearing acuity in his left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.6, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2009 to November 2009 along with multiple periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Army National Guard from February 2008 to February 2015. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The issue of entitlement to service connection for an ankle (unspecified) condition has been raised by the record in the Veteran’s August 2016 substantive appeal, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). I. VA’s Duty to Notify and Assist The VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2017). The Veteran has not identified any shortcomings or alleged prejudice in fulfilling VA’s duty to notify and assist. The Board is not required to search the record to address procedural arguments that a claimant has not raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In light of the foregoing, nothing more is required. II. Entitlement to Initial Compensable Rating for Left Ear Hearing Loss The Veteran contends that he is entitled to a compensable rating for his left ear hearing loss. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The United States Court of Appeals for Veterans Claims (the Court) has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. 38 C.F.R. § 4.85. “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85 (d). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e). Special provisions apply in instances of exceptional hearing loss. 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86 (b). The Court has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran underwent a VA audiological examination in October 2015. His puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 10 15 45 75 The average puretone threshold is 36 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the left ear. The Veteran reported that his hearing loss impacts his daily life and ability to work due to his difficulties in understanding speech in quiet and noise environments, asking people to repeat their speech, and increasing the TV volume in order to hear it. Based on the audiological findings, under Table VI of 38 C.F.R. § 4.85, the Veteran’s hearing loss is equivalent to a level I hearing acuity for the left ear. Service connection is not in effect for the right ear. As such, the right ear is assigned a level I hearing acuity for rating purposes. 38 C.F.R § 4.85 (f). Applying the level I hearing findings for both ears to Table VII results in a noncompensable rating. The Board acknowledges the Veteran’s symptoms of difficulty hearing speech and understanding speech in noise. These symptoms are contemplated by the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). Therefore, the Board must apply the regulation as it is currently written, which requires objective audiometric testing at certain levels to qualify for higher compensation. A compensable rating for left ear hearing loss is not warranted at any time during the appeal period. Therefore, the Veteran’s claim for an initial compensable rating for his left ear hearing loss is denied. REASONS FOR REMAND The Veteran contends that he has a lower back condition due to his military service that has been causing functional impairment since service. To date, the Veteran has not undergone a VA examination to determine the etiology of his lower back claim. Service connection may be established for a disability resulting from a personal injury suffered or a disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110 (2012). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C. § 101 (21) and (24) (2012); 38 C.F.R. § 3.6 (a) (2017). Active military, naval, or air service also includes any period of INACDUTRA in which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated, while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1131 (2012). ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6 (c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6 (d). The Veteran has submitted lay statements saying that he is currently experiencing lower back pain. A February 6, 2010, service treatment record references the Veteran complaining of intermittent lower back pain. The Veteran’s lay statements also demonstrate that he experienced back pain due to “constant ruck marches, loaded/unloading of equipment and frequent driving of armored vehicles…” while in-service. However, the evidence of record is unclear on whether the Veteran was on a period of ACDUTRA or INACDUTRA when he complained of lower back pain in February 6, 2010. A remand of this matter for additional service record review is necessary to clarify the Veteran’s periods of ACDUTRA and INACDUTRA. The matter is REMANDED for the following action: 1. Set forth in a clear memorandum all periods of the Veteran’s ACDUTRA and INACDUTRA service, including whether the Veteran was on a period of ACDUTRA or INACDUTRA in February 6, 2010. If such a memorandum cannot be provided, a notation should be made in the file with a rationale provided. 2. Obtain updated VA and/or private treatment records to the extent possible. If any such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination with a qualified medical professional to determine the nature and the etiology of the Veteran’s lower back condition. The examiner should obtain a relevant history of back injury and symptomology from the Veteran and review the claims file, including a copy of this remand. Based on the examination and a review of the record, the examiner must address the following: a. Does the Veteran have a current disability in his lower back? b. If so, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s lower back condition was either incurred in, or otherwise related to the Veteran’s active duty service, to include any periods of ACDUTRA or INACDUTRA? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The Veteran’s contentions that he has suffered from lower back pain during and since service should be taken into account when rendering an opinion. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page)   (continued on next page) G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel