Citation Nr: 18158390 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-33 363 DATE: December 14, 2018 ORDER A compensable rating for bilateral hearing loss is denied. REMANDED The claim for whether new and material evidence has been submitted to reopen a claim for service connection for cervical strain is remanded. The claim for service connection for orbital tumor is remanded. The claim for service connection for sleep apnea is remanded. The claim for service connection for a varicocele is remanded. The claim for service connection for benign prostatic hypertrophy is remanded. The claim for an increased rating for psoriasis, tinea pedis, and tinea corporis is remanded. FINDING OF FACT The Veteran’s hearing impairment is not worse than level I in either ear when considering pure tone threshold and speech recognition threshold. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss 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 FINDING AND CONCLUSION By a December 2017 signed submission, the Veteran withdrew his request for a personal hearing to address his claim for increased rating for bilateral hearing loss. 1. Increased rating for bilateral hearing loss Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4. In every instance where the Rating Schedule does not provide a percentage evaluation for a Diagnostic Code, a zero percent evaluation is assigned when the requirements for a compensable rating of a diagnostic code are not shown. 38 C.F.R. §§ 4.31. In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity. Generally, the evaluation is determined after consideration of controlled speech discrimination ability and average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second (Hz). If, however, an examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etcetera, the evaluation will be based solely on the pure tone threshold average. 38 C.F.R. § 4.85(c). Additionally, if the evidence demonstrates the existence of exceptional patterns of hearing impairment [pure tone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 Hz) or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 or more decibels at 2000 Hz], the evaluation can be based on the pure tone threshold average and speech discrimination ability or solely on pure tone threshold average. 38 C.F.R. § 4.86. The Veteran was afforded a VA hearing loss examination during the claim period in September 2016. The Veteran has not contested the validity of this examination, and the examination findings are consistent with the balance of the evidence of record also not showing hearing loss disability of such severity as to meet criteria for a compensable rating. At the September 2016 examination, it was noted that the Veteran’s hearing loss did not impact ordinary conditions of his daily life, including ability to work. Pure tone threshold and speech recognition testing were conducted, and these were judged to be valid and appropriate for rating purposes. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average1000 - 4000 RIGHT 20 20 20 40 40 30 LEFT 25 25 25 50 45 36 Speech audiometry, using the Maryland CNC word list, revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. These audiometric findings reflect level I hearing in each ear. These level I designations in combination correspond to a noncompensable rating. 38 C.F.R. § 4.85, Tables VI, VII. The testing does not reveal an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. In July 2016, the Veteran submitted a private audiology report dated in March 2016. In that report it was noted that the Veteran complained of hearing loss as well as occasional high-pitched tinnitus. The Veteran expressed difficulties with understanding in noisy surroundings so that he constantly had to request clarifications, especially at work. A recent episode of otitis six weeks earlier was also noted. At that private audiology evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average 1000 - 4000 RIGHT 30 30 35 50 50 41.25 LEFT 30 35 35 60 60 47.5 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. The private audiologist assessed that the pure tone thresholds reflected mild to moderate sensorineural hearing loss in each ear, while speech audiometry reflected mild loss of hearing for communication in each ear, with excellent discrimination ability at elevated levels in each ear. While these private results reflect significantly worse pure tone thresholds than those found upon subsequent VA examination in September 2016, these private audiometric findings and speech recognition scores still only reflect level I hearing in each ear, and accordingly also correspond to a noncompensable rating. 38 C.F.R. § 4.85, Tables VI, VII. The Veteran also submitted a completed Disability Benefits Questionnaire dated in April 2016 and based on the March 2016 private audiology report. The private examiner then assessed that the Veteran had “limited hearing if not amplified.” The schedular criteria for a higher rating have not been met at any time during the appeal period. The reliable and adequate examination results show that the Veteran does not have sufficient hearing impairment to warrant a compensable rating. In reaching this determination, the Board has considered the statements from the Veteran regarding his hearing loss disability, in particular, his expression of difficulty hearing, and has also considered submitted private medical evidence. However, audiometric findings within the claim period, inclusive of private findings, present a reasonably consistent picture of hearing loss which has not reach a level of impairment that is compensable under VA regulation. This is the case despite the observed small decrease in hearing acuity, based on pure tone thresholds, between April 2007 and September 2016, and despite discrepancies in findings between the March 2016 private testing and the September 2016 VA testing. The Veteran is competent to report his symptoms and describe the impairment associated with his hearing loss. In a Form 9 submitted in June 2017, the Veteran informed, “I am losing my hearing on both ears, more on the left ear.” The Board has considered the Veteran's lay assertions regarding his diminished hearing and its impact on his daily life. The Board has also considered the private examiner’s assessment. Nevertheless, the Board notes that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Consequently, the evidence does not support a compensable disability rating for the Veteran's bilateral hearing loss. 38 C.F.R. § 4.3. Simply stated, on this record, the results do not provide a basis to grant a compensable rating when considering the service-connected hearing loss in both ears. In reaching the foregoing decision, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable because the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). REASONS FOR REMAND 1. – 6. Claims for whether new and material evidence has been submitted to reopen a claim for service connection for cervical strain; service connection for orbital tumor, sleep apnea, a varicocele, and benign prostatic hypertrophy; and for an increased rating for psoriasis and tinea pedis and tinea corporis are remanded. For these remanded issues, in April 2017, the Department of Veterans Affairs (VA) Regional Office (RO) issued decisions on these claims, and the Veteran in July 2017 submitted a notice of disagreement with all those decisions. The RO has yet to issue a statement of the case (SOC) responsive to the notice of disagreement, and hence the Veteran’s initiated appeal of those issues has not moved forward. These issues must be remanded for issuance of an SOC responsive to the notice of disagreement with each of the April 2017 rating decisions on these claims. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). The matters are REMANDED for the following action: The Agency of Original Jurisdiction (AOJ) must provide the Veteran with an SOC with respect to his claim for an increased rating for psoriasis and tinea pedis and tinea corporis; and his claims for service connection for cervical spine strain, orbital tumor, sleep apnea, varicocele, and benign prostatic hypertrophy. The Veteran should be informed that he must file a timely and adequate substantive appeal as to each of these claims in response to the issued SOC to perfect an appeal of these issues to the Board. See 38 C.F.R. § 20.200, 20.202, and 20.203. If a timely substantive appeal is not filed, the claims should not be certified to the Board. If a substantive appeal is filed, the claims, subject to current appellate procedures, should be returned to the Board for further appellate consideration, if appropriate. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter