Citation Nr: 18157813 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 13-22 551 DATE: December 13, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss prior to January 9, 2017, and in excess of 40 percent thereafter, is denied. REMANDED Entitlement to service connection for a skin disorder of the bilateral ears, claims as fungus infection, to include as secondary to service-connected fungus infection of the feet and groin, is remanded. Entitlement to a compensable disability rating for fungus infection of the feet prior to January 30, 2013. Entitlement to a disability rating in excess of 10 percent for fungus infection of the feet and groin from January 30, 2013, is remanded. FINDINGS OF FACT 1. Prior to January 9, 2017, the Veteran’s right ear hearing acuity was not worse than Level VI and his left ear hearing acuity was not worse than Level V. 2. From January 9, 2017, the Veteran’s right ear hearing acuity has not been worse than VII and his left ear hearing acuity has not been worse than Level VII. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for bilateral hearing loss prior to January 9, 2017, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1943 to November 1945. In a May 2011 Rating Decision (RD), the Regional Office (RO) granted an increased 10 percent disability rating for the Veteran’s bilateral hearing loss disability, effective October 28, 2010. In an April 2017 RD, an increased 30 percent rating for the Veteran’s bilateral hearing loss disability was granted, effective February 9, 2017. Most recently, a July 2018 RD granted an increased 40 percent rating, effective January 9, 2017. In July 2018, the RO granted service connection for fungal infection of the groin and characterized fungal infection of the feet to include fungal infection of the groin, effective January 30, 2013. From that date, the RO increased the evaluation of fungal infection of the feet from 0 percent to 10 percent for fungal infection of the feet and groin. As this was not a full grant of the benefits sought on appeal, and the Veteran did not indicate that he agreed with the increased ratings, both “stages” of the claim remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In November 2017, the Board remanded the Veteran’s claim for additional development. There was substantial compliance with the Board’s remand directives to decide the increased rating claim for bilateral hearing loss on appeal. Additional development is required for compliance with the Board’s remand directives to decide the claims of entitlement to 1) service connection for a skin disorder of the bilateral ears, to include fungus infection, to include as secondary to service-connected fungus infection of the feet and groin; and 2) increased ratings for service-connected fungus infection of the feet and groin on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss prior to January 9, 2017, and in excess of 40 percent thereafter. Disability ratings 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that an increased disability rating for bilateral hearing loss is warranted because his hearing disability is more severe than the assigned 10 percent rating prior to January 9, 2017, and the currently-assigned rating of 40 percent. Specifically, in a May 2017 notice of disagreement, the Veteran asserted that the effective date of the award of the increased 40 percent for his service-connected hearing loss disability should be the original date of the claim. Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 using a mechanical formula. Disability ratings for service-connected hearing loss range from noncompensable to 100 percent and are determined by inserting numbers, which are assigned based on the results of audiometric evaluations, into Table VI in DC 6100. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule establishes eleven Roman numeral auditory acuity levels that range from Level I (essentially normal hearing acuity) to Level XI (profound deafness). Id. The level of auditory acuity is based on the average puretone threshold (derived from the results of puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz) and organic impairment of hearing acuity (measured by controlled speech discrimination test; Maryland CNC). See 38 C.F.R. § 4.85, Table VI. The columns in Table VI represent nine categories of decibel loss as measured by puretone threshold averages. The rows in Table VI represent nine categories of organic impairment of hearing acuity as measured by speech discrimination tests. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the column that represents the relevant puretone threshold average with the row that represents the relevant speech discrimination test result. Id. Exceptional patterns of hearing impairment are provided for in 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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 is evaluated separately. 38 C.F.R. § 4.86(a). The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the row that corresponds to the numeric designation for the ear with better hearing acuity (as determined by Table VI) and the column that corresponds to the numeric designation level for the ear with the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See id. In January 2011, the Veteran underwent a VA audiological examination, which showed that the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 65 70 75 65 LEFT 55 70 75 75 69 Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 80 percent in the right ear and 84 percent in the left ear. The puretone numbers for the right ear at 1000, 2000, 3000, and 4000 Hertz are each not above 55 decibels, therefore Table VI will be used for the right ear and not Table VIa. See 38 C.F.R. § 4.86(a). The right ear had a puretone average of 65 decibels and a speech recognition score of 80 percent; therefore, it received a designation of IV under Table VI. See 38 C.F.R. § 4.85. Table VIa will also be considered for the left ear as the puretone numbers at 1000, 2000, 3000, and 4000 Hertz are each above 55 decibels. See 38 C.F.R. § 4.86(a). A puretone average of 69 decibels receives a designation of V under Table VIa. Because the left ear had a puretone average of 69 decibels and a speech recognition score of 84 percent, it received a designation of III under Table VI. 38 C.F.R. § 4.85. The intersection of row IV for the better ear and column V (higher designation for the left ear of under Table VIa) for the poorer ear on Table VII established that under the January 2011 VA examination, the Veteran’s hearing loss is entitled to a 10 percent disability rating. See id. In January 2017, the Veteran had an audiogram performed as part of his VA treatment; it showed that his puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 70 70 80 70 LEFT 60 70 70 75 69 Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 65 percent in the right ear and 60 percent in the left ear. The puretone numbers for both ears at 1000, 2000, 3000, and 4000 Hertz are each above 55 decibels, therefore Table VIa will be considered for both the right and left ear, along with Table VI and the table that results in the higher numeral for each ear will be used. See 38 C.F.R. § 4.86(a). The right ear had a puretone average of 70 decibels and a speech recognition score of 65 percent; therefore, it received a designation of VII under Table VI and VI under Table VIa. See 38 C.F.R. § 4.85. Because the left ear had a puretone average of 69 decibels and a speech recognition score of 60 percent, it received a designation of VII under Table VI and V under Table VIa. See id. The intersection of row VII and column VII on Table VII established that under the January 2017 VA examination, the Veteran’s hearing loss is entitled to a 40 percent disability rating. See id. In a February 2017 VA audiology note (that accompanied the January 2017 audiogram), the audiologist noted that the Veteran complained of increased difficulty understanding speech, especially in the presence of background noise. The Veteran is competent to describe the effects of his hearing loss on his daily functioning, such as having difficulty understanding speech clearly or inability to hear other sounds of various contexts. The Veteran has been provided objective, controlled speech discrimination tests using the appropriate VA-approved Maryland CNC word list during his VA audiological examinations. The speech discrimination test specifically assesses word comprehension and assigns a speech recognition ability percentage. The disability ratings are derived by a mechanical application of the rating schedule which incorporates both the puretone threshold average and the speech recognition ability percentage. Lendenmann, 3 Vet. App. at 349. The VA examinations that were provided to the Veteran resulted in a 10 percent disability rating, effective from January 2011, and a 40 percent rating, effective from January 2017. The Board has considered the functional impact of the Veteran’s disability and the results of the audiological examination of record. Mechanical application of the Rating Schedule to the audiometric findings does not establish entitlement to an increased disability rating at any point of the appeal period. The Board has considered the June 2010 and December 2015 VA audiological evaluations referenced by the Veteran’s representative, which were obtained following the November 2017 Board remand directives. A July 2012 VA audiological evaluation was also obtained along with the June 2010 and December 2015 evaluations. The Board finds that the June 2010, July 2012, and December 2015 VA audiological evaluations to be of diminished probative value. 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(a). The evaluations indicate that controlled speech discrimination tests using the appropriate VA-approved Maryland CNC word were not performed along with the puretone audiometric findings. Furthermore, the June 2010 and July 2012 audiologists made specific comments that the evaluations were not adequate for rating purposes. Accordingly, the Board finds the June 2010, July 2012, and December 2015 audiological evaluations are not valid for evaluating the extent of the Veteran’s hearing impairment for VA purposes. The Board has also considered the Veteran’s contention, in a May 2017 notice of disagreement, that the effective date of the increased 40 percent disability rating for his service-connected hearing loss should be the original date of claim. Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant’s file which demonstrates that an increase in disability was “ascertainable” up to one year prior to the claimant’s submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). The Veteran filed his claim for an increased rating for his service-connected bilateral hearing loss disability on October 28, 2010, which is also the effective date of an increased 10 percent rating. The evidence of record does not show that an increase in disability was “ascertainable” the year prior to the Veteran’s claim for increase. The increased 40 percent rating is effective from January 9, 2017, which is the date of the Veteran’s VA audiogram where findings established entitlement to a 40 percent rating. As previously discussed, June 2010, July 2012, and December 2015 audiological evaluations are not valid for evaluating the extent of the Veteran’s hearing impairment for VA purposes. There is no evidence in the record prior to January 9, 2017, to indicate that a disability rating in excess of 10 percent was warranted. Similarly, there is no evidence in the record to indicate that from January 9, 2017, a disability rating in excess of 40 percent is warranted. The preponderance of the evidence is against the claim for higher ratings for bilateral hearing loss. The impairment associated with this disability is contemplated by the rating criteria, which consider the average impairment resulting from a service-connected disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Absent audiometric and speech discrimination scores showing that the Veteran’s hearing loss disability meets the schedular criteria for an increased rating; his reported functional impairment does not warrant a higher rating than is already assigned. See 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 349. Thus, the benefit-of-the-doubt rule does not apply, and entitlement to a disability rating in excess of 10 percent for bilateral hearing loss prior to January 9, 2017, and in excess of 40 percent thereafter, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 2. Entitlement to service connection for a skin disorder of the bilateral ears, to include fungus infection, to include as secondary to service-connected fungus infection of the feet and groin, is remanded. In November 2017, the Board remanded the claim for a VA examination and opinions. The Veteran was afforded a VA examination in February 2018. The examiner stated that he could not comment on the Veteran’s claimed ear fungal infection because of the presence of bilateral cerumen which did not allow “visualization of the auditory canals at all.” The examiner also indicated that therefore he could not comment on the 1949 and 2017 notes regarding fungal external otitis, as requested in the November 2017 Board remand directives. In an October 2018 appellant’s brief, the Veteran, through his representative, asserted that the February 2018 examination did not comply with the Board’s remand directives for an etiology opinion to be provided. The Veteran requested a new examination for his claimed skin disorder of the bilateral ears. Therefore, the Board finds that a remand is necessary to afford the Veteran a new VA examination for compliance with the November 2017 Board remand directives. 3. Entitlement to a disability rating in excess of 0 percent prior to January 30, 2013, for fungus infection of the feet; and in excess of 10 percent from January 30, 2013, for fungus infection of the feet and groin is remanded. A determination with respect to the claim of entitlement to service connection for a skin disorder of the bilateral ears may have an impact upon consideration of the issue of an increased evaluation for fungus infection of the feet and groin on appeal; therefore, the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claims. As such, Board consideration of the merits of the Veteran’s increased rating claim is deferred pending adjudication of the Veteran’s service connection claim for a skin disorder of the bilateral ears. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, related to treatment of his 1) skin disorder of the bilateral ears and 2) fungus infection of the feet and groin should be obtained. Any negative response should be in writing and associated with the claims file. In addition, obtain any outstanding VA treatment records and associate them with the claims file. 2. The Veteran is notified that the February 2018 VA examiner was unable to visualize the auditory canals due to bilateral cerumen. The Veteran is informed that the duty to assist is not a one-way street and addressing the bilateral cerumen as medically appropriate prior to a new examination would assist VA in providing him an adequate examination of the claimed skin disorder of the bilateral ears. 3. Schedule the Veteran for a VA examination concerning his claimed skin disorder of the bilateral ears to determine the nature, extent, and etiology. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The claims folder must be made available for review and the examiner must note that a review was completed. The VA examiner’s attention is drawn to the following: • The Veteran served on active duty from July 1943 to November 1945. • The Veteran is currently service-connected for 1) tinea infection of the feet and groin; 2) bilateral hearing loss; and 2) tinnitus. The examiner is asked to answer the following questions: a. What are the Veteran’s current skin disorder(s) of the bilateral ears? b. For each diagnosed skin disorder of the bilateral ears, the examiner is asked to address whether it is at least as likely as not (50 percent probability or more) incurred-in, caused by, or otherwise related to service? c. Is the claimed skin disorder of the bilateral ears at least as likely as not (50 percent or greater likelihood) caused by the service-connected tinea infection of the feet and groin? d. If the answers to subparagraph (c) is “no,” is the claimed skin disorder of the bilateral ears at least as likely as not (50 percent or greater likelihood) aggravated (permanently worsened beyond the natural progression of the disease) by the service-connected tinea infection of the feet and groin? e. If the examiner finds that the service-connected tinea infection of the feet and groin, permanently aggravates the claimed skin disorder of the bilateral ears, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the skin disorder of the bilateral ears prior to aggravation. If the examiner is unable to establish a baseline for the skin disorder of the bilateral ears prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. f. The examiner must address the diagnoses of external otitis of fungus origin in April 1949 and 2017 and the diagnosis of fungal infection due to pruritus in May 2017. See 1) VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 04/26/1949; 2) VBMS entry with document type, “Medical Treatment Record –Government Facility,” receipt date 02/24/2017; and 3) VBMS entry with document type, “VA 21-4138 Statement In Support of Claim,” receipt date 05/24/2017. Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel