Citation Nr: 18153504 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-44 080 DATE: November 28, 2018 ORDER Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to the Veteran’s service-connected bronchial asthma, is remanded. FINDINGS OF FACT The Veteran demonstrated, at worst, level II hearing acuity in his left ear and level II hearing acuity in his right ear. CONCLUSIONS OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.85, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 through June 1992. This case is before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision. 1. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. Service connection for bilateral hearing loss was granted by a May 2014 rating decision. A noncompensable disability rating was applied. The Veteran has appealed this rating, asserting that his hearing loss warrants compensation. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155 (2012). Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII (2017). Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests (Maryland CNC) together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85 (a), (d) (2017). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular ratings are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (2017). Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), or hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b) (2017). Where there is an exceptional pattern of hearing loss of 55 decibels or more in each of the four specified frequencies, 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) (2017). 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. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran’s bilateral hearing loss is currently rated as noncompensable under 38 C.F.R. § 4.85, DC 6100. The Veteran was afforded two VA audiometric examinations for the purpose of compensation during the appeal period. During a November 2013 examination, the Veteran’s average puretone threshold in the right ear was 25 hertz while the average in the left ear was 28 hertz. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 90 percent in the left ear. Applying the criteria set forth in 38 C.F.R. § 4.85 and § 4.86 to these audiometric results yields a roman numeral II for the right ear; and a roman numeral II for the left ear, based on Table VI. A combination of II and II equates to a noncompensable disability rating according to Table VII. During an April 2016 examination the Veteran’s average puretone threshold in the right ear was 38 hertz while the average in the left ear was 26 hertz. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. Applying the criteria set forth in 38 C.F.R. § 4.85 and § 4.86 to these audiometric results yields a roman numeral I for the right ear; and a roman numeral I for the left ear, based on Table VI. A combination of I and I equates to a noncompensable disability rating according to Table VII. At no time during the appeal period has the Veteran manifested an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. Upon review of the evidence, the Board finds that a compensable rating for bilateral hearing loss is not warranted. The VA examinations reflect no worse hearing than Level II hearing for the right ear and Level II for the left ear. The assignment of disability evaluations for hearing impairment is a mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board has considered the fact that the Veteran contends that his hearing loss disability warrants a compensable rating. However, the Board is bound in its decisions by the VA regulations governing the rating of hearing loss. 38 U.S.C. § 7104 (c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017). Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test. Application of the schedule to the facts of this case shows that a compensable rating is not warranted. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria; therefore, the Veteran’s struggle to comprehend verbal conversations is contemplated in the regulations and schedular rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). Therefore, referral for extraschedular consideration is not warranted in this case. As observed above, this exercise is a mechanical one, with no interpretative leeway. Lendenmann. Although the Board sympathizes with the Veteran’s frustration at his decreased hearing acuity, we are constrained to follow the law and regulations as they are written and to apply them equally to all similarly-situated Veterans. The preponderance of the evidence is against the claim for a compensable disability rating and the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to the Veteran’s service-connected bronchial asthma, is remanded. The Veteran contends that his OSA, which was diagnosed in July 2013, was incurred in, or caused by, his service, or was caused by his service-connected bronchial asthma. For service connection claims, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A (d) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Board notes that the Veteran was diagnosed with OSA by a sleep study conducted in July 2013. Further, the Veteran submitted a statement by a fellow service member in August 2017 who attested to the fact that the Veteran snored loudly in service and once stopped breathing while sleeping. Further, the fellow service member has stayed with the Veteran numerous times since service and has noticed the same symptoms on those occasions as well. Further, the Veteran’s representative submitted an IHP in July 2018 arguing that his claim for service connection should have also been considered as secondary to the Veteran’s service-connected bronchial asthma. The Veteran was not afforded a VA examination in connection with his claim for service connection for his OSA, and as such, there is no opinion as to the etiology of the Veteran’s OSA. Thus, the Board does not have adequate information to determine whether the Veteran’s OSA was incurred in, or caused by, service or if it is related to the Veteran’s service-connected bronchial asthma. Accordingly, entitlement to service connection for OSA is remanded. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current nature and etiology of the diagnosed OSA, to include whether it is related to service or his service-connected bronchial asthma. The claims file must be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported. The examiner should then respond to the following: (a) Is it at least as likely as not (50 percent probability or more) the result of a disease or injury in service? Please provide sufficient rationale. (b) If the Veteran’s sleep apnea is not directly related to service, is it at least as likely as not (50 percent probability or more) that it was caused or aggravated by his service-connected bronchial asthma? Please explain why or why not. (Continued on the next page)   (c) If you find that the Veteran has sleep apnea that has been aggravated by his bronchial, please attempt to quantify the degree of aggravation beyond the baseline level of disability. All opinions must be accompanied by a complete rationale and the examiner should consider the Veteran's self-reported history with regard to onset and observable symptoms. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shelton, Law Clerk