Citation Nr: 18157776 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 10-09 320 DATE: December 14, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss (formerly left ear hearing loss) prior to April 10, 2017, and in excess of 10 percent thereafter, is denied. REMANDED Service connection for respiratory disorder, to include as due to an undiagnosed illness under the provisions of 38 C.F.R. § 3.317, is remanded. Service connection for a chronic fatigue syndrome, to include as due to an undiagnosed illness under the provisions of 38 C.F.R. § 3.317, is remanded. Service connection for generalized arthritis and joint pain, to include as due to an undiagnosed illness under the provisions of 38 C.F.R. § 3.317, is remanded. FINDINGS OF FACT 1. Prior to April 10, 2017, the Veteran’s hearing impairment was no worse than Level II hearing loss in the right ear and Level II hearing loss in the left ear. 2. From April 10, 2017, the Veteran’s hearing loss was no worse than Level IV hearing loss in the right ear and Level V hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss prior to April 10, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss from April 10, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1967, and from November 1990 to June 1991, to include service in Southwest Asia. The issues are on appeal from December 2009 and October 2012 rating decisions. The Board of Veterans’ Appeals (Board) notes that in a March 2016 rating decision, the regional office (RO) granted service connection for right ear hearing loss and assigned a noncompensable rating. In an August 2017 rating decision, the RO merged the left and right ear hearing loss disabilities to bilateral hearing loss and increased the disability rating for bilateral hearing loss to a 10 percent assignment, effective April 10, 2017. As this decision constitutes a partial grant of the benefits sought on appeal; the remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to April 10, 2017, and in excess of 10 percent thereafter Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Under Diagnostic Code 6100, the assignment of disability ratings for service-connected hearing impairment is 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 Rating Schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second). The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Id. The rating criteria provide for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86 (2017). If the puretone threshold is greater than 55 decibels at each of four specified frequencies, 1000 Hertz, 2000 Hertz, 3000 Hertz and 4000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(a). If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must 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 highest numeral for consideration. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). Prior to April 20, 2017 The Veteran is rated at noncompensable prior to April 10, 2017 under Diagnostic Code 6100 for his bilateral hearing loss. During a September 2012 VA examination, the Veteran reported symptoms of bilateral hearing loss. Audiometric testing demonstrated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 40 65 65 LEFT 20 15 40 50 65 The average threshold for the right ear was 48 Hz and for the left ear was 42 Hz. Speech discrimination testing showed 88 percent in each ear. The Veteran was diagnosed with bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hz. VA treatment notes showed a November 2012 audiogram, in puretone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 40 X 70 LEFT 40 35 60 X 80 Speech discrimination testing showed 100 percent in each ear. The Veteran was diagnosed with sensorineural hearing loss of combined types. However, the November 2012 audiogram is considered incomplete as decibels at 3000 Hz were not provided. Therefore, applying the results from the September 2012 VA examination to the Rating Schedule shows Level II hearing acuity in both ears. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable evaluation for bilateral hearing loss under Diagnostic Code 6100. From April 20, 2017 During an April 2017 VA examination, the Veteran reported symptoms of bilateral hearing loss. Audiometric testing demonstrated puretone thresholds, in decibels, as follows: (Continued on next page) HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 50 65 70 LEFT 25 35 60 70 75 The average threshold for the right ear was 54 Hz and for the left ear was 60 Hz. Speech discrimination testing showed 82 percent in the right ear and 70 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hz. Applying the results from the April 2017 VA examination to the Rating Schedule shows Level IV hearing acuity in the right ear and Level V hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 10 percent evaluation for bilateral hearing loss under Diagnostic Code 6100. Based on the foregoing discussion, evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected bilateral hearing loss disability varied to such an extent that a rating greater or less than the ratings currently assigned would be warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claims for ratings in excess of those assigned, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. 1. Service connections for a respiratory disorder and for chronic fatigue syndrome, both to include as due to an undiagnosed illness under the provisions of 38 C.F.R. § 3.317, are remanded. Per the February 2016 remand, the Board instructed the RO to schedule the Veteran for a VA examination. In May 2017, the Veteran was afforded a new VA examination for his respiratory disorder and chronic fatigue syndrome. The Board finds the May 2017 examination is inadequate. See Stegall v. West, 11 Vet. App. 268 (1998). As instructed in the February 2016 remand, the May 2017 examiner acknowledged the Veteran’s February 1991 complaints of chest pain, April 1991 complaints of chronic cough, and April 1991 Report of Medical Examination that showed chronic bronchitis, as a general comment of the Veteran reporting slight wheezing and dyspnea in 1991. However, he did not consider nor discuss the Veteran’s treatment records which showed a September 2002 diagnosis of sinus allergies and occasional sinusitis; February 2004 complaint of upper respiratory symptoms with chronic sinusitis; or an October 2009 diagnosis of sinusitis. He also did not consider the January 2015 VA examination diagnosis of chronic sinusitis. Rather, the May 2017 examiner opined that the Veteran was never diagnosed with nor currently had a respiratory diagnosis. Although the Veteran has had respiratory diagnoses in the past, as outlined above, the examiner did not provide any information or rationale to explain his medical opinion that the Veteran had never been diagnosed with a respiratory disorder. The examiner then provided a negative nexus opinion, stating that the Veteran had specific diagnoses with clear etiologies and that there was no evidence of a chronic disability pattern in his examination. The examiner also opined that the Veteran’s current dyspnea symptom was more likely related to his morbid obesity and decreased aerobic capacity. On remand, an addendum opinion must be obtained addressing the Veteran’s treatment records noting his post-service diagnoses and complaints. The examiner must thoroughly explain his rationale, and if he continues to opine that the Veteran has no respiratory disorder, there must be an explanation as to why the Veteran’s diagnoses, as recently as January 2015, were incorrect and/or not considered indicative of a chronic condition. 2. Service connection for generalized arthritis and joint pain, to include as due to an undiagnosed illness under the provisions of 38 C.F.R. § 3.317, is remanded Per the February 2016 remand, the Veteran was afforded a new Gulf War General VA examination for his joint pains in May 2017. The Veteran had complained of pain in his back, shoulders, elbows, forearms, fingers, knees, and lower legs, as noted in VA treatment records and past VA examinations. However, the May 2017 examiner only examined the Veteran’s back and knee conditions. Stegall, 11 Vet. App. at 268. On remand, the Veteran must be scheduled for a new VA examination that will review joint pain in the back, shoulders, elbows, forearms, fingers, knees, and lower legs, and provide an etiological opinion for any disability found. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the same May 2017 examiner. If the same VA examiner is unavailable, obtain an addendum opinion from another appropriate clinician. Whether a physical examination is required is left to the examiner’s discretion. The examiner is requested to address the following: Provide a diagnosis for any disability related to the Veteran’s claimed respiratory symptoms. If a diagnosis pertaining to any of these symptoms is rendered, the examiner must provide an opinion as to whether each diagnosed disability was incurred in, due to, or aggravated by the Veteran’s active duty, to include as due to an exposure near the Persian Gulf, including dust storms, smoke from burning oil wells, and inhalation of diesel fuel. In doing so, the examiner must specifically consider and discuss the Veteran’s documented in-service and post-service respiratory symptomatology. Specifically, the examiner should consider the Veteran’s continuous symptoms since service, and VA treatment records that show a September 2002 diagnosis of sinus allergies, February 2004 complaints of upper respiratory symptoms with chronic sinusitis, an October 2009 diagnosis of sinusitis, and the January 2015 VA examination diagnosis of chronic sinusitis. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given that is consistent with the evidence of record. All examination findings, along with complete, clearly-stated rationale for the conclusions reached, must be provided 2. Schedule the Veteran for a Gulf War General Medical Examination for his reported joint pains in his back, shoulders, elbows, forearms, fingers, knees, and lower legs. The examiner is asked to: (a) Provide a diagnosis for any disability found related to the Veteran’s claimed symptoms of arthritis and/or joint pain. If a diagnosis pertaining to any of these symptoms is rendered, the examiner must provide an opinion as to whether each diagnosed disability was incurred in, due to, or aggravated by the Veteran’s active duty, to include as due to an exposure near the Persian Gulf, Anthrax vaccinations, or drugs used to protect against nerve agents. (b) If a diagnosis pertaining to any of the Veteran’s symptoms of joint pain is rendered, the examiner must provide an opinion as to whether such symptoms constitute an undiagnosed illness associated with his service in Southwest Asia theater of operations during the Persian Gulf War. 3. Readjudicate the appeals. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel