Citation Nr: 18155356 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 14-07 702 DATE: December 4, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to October 7, 2015 is denied. Entitlement to a rating in excess of 10 percent for bilateral hearing loss from October 7, 2015 to May 16, 2016 is denied. Entitlement to a rating in excess of 30 percent for bilateral hearing loss from May 17, 2016 is denied. REMANDED Entitlement to service connection for diabetes mellitus is remanded. FINDINGS OF FACT 1. For the period prior to October 7, 2015, the Veteran’s bilateral hearing loss was manifested by no more than a hearing acuity of Level II for the right ear and a Level I for the left ear. 2. For the period from October 7, 2015 to May 16, 2016, the Veteran’s bilateral hearing loss was manifested by no more than a hearing acuity of Level VI for the right ear and Level III for the left ear. 3. For the period on or after May 16, 2016, the Veteran’s bilateral hearing loss was manifested by no more than a hearing acuity of Level VII for the right ear and Level VI for the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for bilateral hearing loss prior to October 7, 2015 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100 (2017). 2. The criteria for an evaluation in excess of 10 percent for bilateral hearing loss from October 7, 2015 to May 16, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100 (2017). 3. The criteria for an evaluation in excess of 30 percent for bilateral hearing loss from May 17, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United Air Force from December 1970 to May 1974. In October 2015, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ), who has since left the Board. The Veteran was offered the opportunity to testify at another hearing with a VLJ, which he declined. The Board previously remanded this case for additional development in January 2016. The case has now been returned to the Board for appellate review. The Board finds that additional development is warranted to address the directives for service connection for diabetes mellitus from the January 2016 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand orders of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance). Increased rating for hearing loss The Veteran’s service-connected bilateral hearing loss has been evaluated as noncompensably disabling from June 29, 2012, 10 percent disabling from October 7, 2015, and 30 percent disabling from May 17, 2016 under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85. In evaluating hearing loss under the schedular criteria, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). When the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b). Prior to October 7, 2015 Turning to the record, an August 2013 VA examination shows pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 45 40 55 70 LEFT N/A 40 35 50 70 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear. The average decibel loss was 52 in the right ear and 49 in the left ear. Entering the average pure tone thresholds and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is II for the right ear and I for the left ear. See 38 C.F.R. § 4.86 (a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. The Board finds that there is no audiological evidence of record to support a compensable evaluation for bilateral hearing loss prior to October 7, 2015. The preponderance of the evidence is against his claim for an increased evaluation. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). From October 7, 2015 to May 17, 2016 On October 7, 2015, the Veteran appeared for a hearing before the Board and described his symptoms. Specifically, that his hearing gets worse every year and that he now wears hearing aids. The Veteran was sent for a VA audiological evaluation in February 2016, which shows pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 65 55 70 95 LEFT N/A 40 40 45 70 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 80 in the left ear. Average decibel readings were 71 in the right ear and 49 in the left ear. Entering the average pure tone thresholds and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is VI for the right ear and III for the left ear. See 38 C.F.R. § 4.86 (a). Table VIa is also applicable to the right ear, and results in a numeric designation of VI. See 38 C.F.R. § 4.86 (a). Entering the category designations for each ear into Table VII results in a 10 percent evaluation under Diagnostic Code 6100. The Board finds that there is no audiological evidence of record to support an evaluation greater than 10 percent for bilateral hearing loss for the period beginning with the Veteran’s testimony of October 7, 2015 through May 17, 2016. The preponderance of the evidence is against his claim for an increased evaluation for this period. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). From May 17, 2016 The Veteran also had a May 2016 VA examination that shows pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 70 60 75 95 LEFT N/A 45 45 45 70 Speech audiometry revealed speech recognition ability of 62 percent in the right ear and of 70 percent in the left ear. Average decibel levels were 75 in the right ear and 51 in the left ear. Entering the average pure tone thresholds and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is VII for the right ear and VI for the left ear. See 38 C.F.R. § 4.86 (a). Table VIa is also applicable to the right ear, and results in a numeric designation of VI. See 38 C.F.R. § 4.86 (a). Entering the category designations for each ear into Table VII results in a 30 percent evaluation under Diagnostic Code 6100. The Board finds that there is no audiological evidence of record to support an evaluation greater than 30 percent for bilateral hearing loss from May 17, 2016. The preponderance of the evidence is against his claim for an increased evaluation. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. The Veteran’s main complaint regarding hearing loss is reduced hearing acuity and clarity, which is precisely what is contemplated in the rating assigned. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). REASONS FOR REMAND Entitlement to service connection for diabetes mellitus is remanded. The Veteran’s service records reflect that he served in the Air Force in Thailand during 1973 to 1974. Pursuant to the record, the Veteran served as a lab technician while serving in Thailand, which service required him to travel between the Thai Air Force bases to collect oil samples. In the January 2016 Board remand, the Agency of Original Jurisdiction (AOJ) was specifically directed to investigate not only the nature of the Veteran’s service in Thailand, but also whether or not the Veteran served in or onboard the C-123 aircraft. The Joint Services Records Center (JSRRC) prepared a memo dated October 11, 2016 detailing its efforts to obtain the necessary information to corroborate exposure to herbicide, the Veteran’s service in Thailand, as well as the US Department of Defense’s use of herbicide in Thailand. However, missing from this memo is any reference to the Veteran’s possible exposure to herbicide through the C-123 aircraft. Accordingly, the matter of the Veteran’s claimed exposure to herbicide is remanded to the AOJ for further development with regard to the Veteran’s regular and repeated operation, maintenance, or service onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era in accordance with 38 C.F.R. §3.307(a)(6)(v). The matter is REMANDED for the following action: 1. Send a letter to the Veteran and his representative informing the Veteran of the information and evidence necessary to substantiate the claim for service connection for diabetes to include specific information regarding the presumed herbicide exposure for Veterans who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft. The Veteran should be asked to provide any information or evidence in his possession, including lay assertions of others with whom he served, involving C-123 aircraft being serviced at the locations at which he was stationed during the Vietnam era. If there is insufficient data available to formulate a request within JSRRC guidelines, ask the Veteran to provide sufficient detail to submit a verification request of herbicide exposure in Thailand to JSRRC. 2. Thereafter, attempt to verify the Veteran’s claimed exposure to herbicides including whether the Veteran regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Any response from JSRRC (positive or negative) should be associated with the claims file. If insufficient data is available to formulate a request within JSRRC guidelines, a memorandum to that effect should be prepared and associated with the claims file. 3. Thereafter, the RO/AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested report to ensure that it is responsive to and in compliance with the directives of this remand, if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Scanlan, Associate Counsel