Citation Nr: 18152768 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 15-06 312 DATE: November 26, 2018 ORDER Entitlement to an initial compensable rating for bilateral sensorineural hearing loss is denied. REMANDED Entitlement to service connection for a thoracolumbar disorder is remanded. Entitlement to service connection for residuals status posts right lobectomy for lung cancer, to include as secondary to asbestos exposure, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to asbestos exposure, is remanded. Entitlement to service connection for irritable bowel syndrome, to include as secondary to service-connected gastroesophageal reflux disease (GERD), is remanded. Entitlement to service connection for allergies, to include as due to asbestos exposure, is remanded. FINDING OF FACT During the course of the appeal, the Veteran has demonstrated at worse level I hearing acuity bilaterally. CONCLUSION OF LAW The criteria for a compensable rating for bilateral sensorineural hearing loss have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1954 to October 1957. 1. Entitlement to an initial compensable rating for bilateral sensorineural hearing loss Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Per 38 C.F.R. § 4.85, 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. Examinations are conducted without the use of hearing aids. 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 percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85. 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 the puretone threshold average. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. “Puretone threshold average,” as used in Tables VI and VIA, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in 38 C.F.R. § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. The Board further notes the United States Court of Appeals for Veterans Claims 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). In this case, the Veteran seeks entitlement to an initial compensable rating for bilateral hearing loss. During the relevant time period, November 2012 private medical records reflect that the Veteran was treated for bilateral sensorineural hearing loss. The word discrimination speech word list is not identified, but nonetheless was reported as 100 percent for the right ear and 96 percent for the left ear. The graphical representation revealed the following puretone thresholds: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 30 30 40 50 37.50 LEFT 25 25 50 65 41.25 According to Table VI, the right ear is rated at level I and the left ear at level I. Applying these results to Table VII, the Veteran’s disability is rated as noncompensable. These test results do not show that the Veteran had an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. At an October 2013 VA audiological examination, puretone thresholds, in decibels, were as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 25 25 35 40 31.25 LEFT 25 25 35 45 32.5 The puretone threshold average was 31.25 decibels in the right ear, and 32.5 decibels in the left ear. The Maryland CNC controlled speech discrimination test scores were 94 percent bilaterally. According to Table VI, the right ear is rated at level I and the left ear at level I. Applying these results to Table VII, the Veteran’s disability is rated as noncompensable. These test results do not show that the Veteran had an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. After reviewing the evidence in the record, the Board finds that the criteria for an initial compensable rating have not been met. The evidence from the November 2012 private examination report and the October 2013 VA audiological examination shows that the Veteran is not entitled to a compensable rating. As noted above, disability evaluations for hearing loss are derived from a mechanical application of the Rating Schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board acknowledges the Veteran’s hearing difficulties which include require an amplifier on his phone line. However, in regards to assigning the proper disability rating, the Board is bound by the explicit criteria stated in the Rating Code. His description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination, and is contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for a thoracolumbar disorder is remanded. 2. Entitlement to service connection for residuals status posts right lobectomy for lung cancer, to include as secondary to asbestos exposure, is remanded. 3. Entitlement to service connection for obstructive sleep apnea, to include as secondary to asbestos exposure, is remanded. VA is obligated to provide a medical examination when the record contains competent evidence that a claimant has a current disability or symptoms of a current disability, the record indicates that a current disability or symptoms of a current disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). See also 38 C.F.R. § 3.159(c)(4). On remand, the AOJ must obtain VA examinations of the thoracolumbar spine and lungs, as well as an examination for obstructive sleep apnea. 4. Entitlement to service connection for irritable bowel syndrome, to include as secondary to service-connected GERD, is remanded. 5. Entitlement to service connection for allergies, to include as due to asbestos exposure, is remanded. The Veteran underwent October 2013 VA examinations for both irritable bowel syndrome and allergies. While the examiner determined that there was no nexus between irritable bowel syndrome and service, the examiner did not address whether it was caused or aggravated by service-connected GERD. Additionally, the examiner determined that it was at least as likely as not that the Veteran’s chronic allergy condition preexisted service. While the Veteran indicated “ear, nose, and throat” trouble on his February 1954 entrance report, the entrance examination does not indicate chronic allergies. Further, the examiner did not address whether chronic allergies are caused or aggravated by asbestos exposure. On remand, the AOJ must obtain addendum opinions regarding irritable bowel syndrome and chronic allergies. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records since May 2005 and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any treatment records related to a previous lumbar surgery referenced in his October 2007 private medical records. Additionally, ask the Veteran to complete a VA Form 21-4142 for a right lung lobectomy from 1983. 3. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any low back disorder. The examiner must opine as to whether it is at least as likely as not related to an in-service injury, event, or disease, to include the rigors of his type of military service. A complete rationale must be provided for the opinion. 4. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of residuals of the Veteran’s right lobectomy for lung cancer. The examiner must opine as to whether the Veteran’s lung cancer is at least as likely as not related to an in-service injury, event, or disease, including exposure to asbestos. The examiner should obtain a history of asbestos exposure from the Veteran. In answering the question, the examiner must address the following: • June 2010 private medical records imaging reflecting interstitial changes suggesting minimal fibrosis; • October 2010 private medical records reflecting treatment for asbestosis; and • article submitted in November 2013 regarding veterans and asbestos exposure generally. A complete rationale must be provided for the opinion. 5. Schedule the Veteran for an examination that includes a sleep study with an appropriate examiner to determine the nature and etiology of any diagnosed obstructive sleep apnea. The examiner should answer the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s sleep apnea had its onset in service or is otherwise related to service? In providing this opinion, the examiner is requested to identify the criteria for diagnosing sleep apnea. (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s sleep apnea is etiologically related to asbestos exposure? The examiner should obtain a history of asbestos exposure from the Veteran and address the following: • September 1956 service treatment records reflecting a deviated septum; • January and March 2011 private medical records reflecting treatment for nightly insomnia; • November 2012 private medical records indicating sleep apnea and treatment with a mask; and • article submitted in November 2013 regarding veterans and asbestos exposure generally. A complete rationale must be provided for any opinion offered. 6. Forward the Veteran’s claims file to a qualified examiner for an addendum opinion addressing the etiology of the Veteran’s irritable bowel syndrome. The examiner should address the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s irritable bowel syndrome had its onset in service or is otherwise related to service? (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s irritable bowel syndrome is caused or aggravated by service-connected GERD? In answering these questions, the examiner should address the October 2013 VA examination diagnosing the Veteran with irritable bowel syndrome, but finding no nexus to service. If an examination is needed, one should be scheduled. All opinions expressed must be supported by complete rationale. 7. Forward the Veteran’s claims file to a qualified examiner for an addendum opinion addressing the etiology of the Veteran’s allergies. The examiner should address the following questions: (a) Is there clear and unmistakable (i.e., obvious and manifest) evidence that the Veteran’s allergies preexisted service? If there is, is there clear and unmistakable (i.e., obvious and manifest) evidence that the allergies did not increase in severity beyond the natural progression during service? (b) If the answer to both parts of (a) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s allergies had its onset in service or is otherwise related to service? (c) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s allergies are etiologically related to asbestos exposure? In answering these questions, the examiner should obtain a history of asbestos exposure form the Veteran and must address the following: • February 1954 entrance report of medical history indicating “ear, nose, and throat troubles;” • February 1954 entrance examination containing no indication of allergies; • September 1957 separation examination noting seasonal mild sinusitis; • Private medical records reflecting treatment for allergies (see, e.g., May 2012 Private Medical Records); • October 2013 VA examination diagnosing the Veteran with seasonal allergies; and • article submitted in November 2013 regarding veterans and asbestos exposure generally. If an examination is needed, one should be scheduled. All opinions expressed must be supported by complete rationale. (continued on next page) 8. After completing the actions detailed above, readjudicate the claims. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel