Citation Nr: 1807914 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 12-01 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial compensable rating for glaucoma. 2. Entitlement to an initial compensable rating for bilateral hearing loss. 3. Entitlement to an initial compensable rating for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1978 to August 1978, from November 1990 to May 1991, and from January 2003 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the VA Regional Office (RO) in Jackson, Mississippi. In September 2015, the Veteran testified at a videoconference hearing conducted before a Veterans Law Judge (VLJ) who has since retired from the Board. In correspondence received in May 2017, the Veteran declined to have a new hearing before a VLJ. These issues were remanded in February 2016 for further development. Since the last Supplemental Statement of the Case, the Veteran has submitted new evidence, which relates to the issues on appeal. He waived his right to have the RO consider this evidence in the first instance in May 2016. 38 C.F.R. § 20.1304(c) (2017). The Board notes that entitlement to a total disability rating based upon individual unemployability is already in effect in this case, and is therefore not raised by the present appeal. FINDINGS OF FACT 1. For the period prior to September 15, 2017, the Veteran's glaucoma did not require continuous medication; had not resulted in incapacitating episodes; and had not resulted in visual impairment. 2. For the period beginning September 15, 2017, the Veteran's glaucoma requires continuous medication, but does not result in incapacitating episodes or visual impairment. 3 Audiometric testing reveals no worse than Level I hearing acuity bilaterally. 4. The Veteran's hypertension is treated with medication but has not been productive of diastolic pressure of 110 or systolic pressure of 200 at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for glaucoma have not been met for the period prior to September 15, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.79, Diagnostic Code (DC) 6012 (2017). 2. The criteria for an initial 10 percent rating, but not more, for glaucoma have been met for the period beginning September 15, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.79, Diagnostic Code (DC) 6012 (2017). 3. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.85 Diagnostic Code (DC) 6100 (2017). 4. The criteria for an initial 10 percent rating, but not more, for hypertension have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.31, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Initial rating claims A. Applicable laws and regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. B. Glaucoma A minimum compensable evaluation of 10 percent is available for glaucoma under 38 C.F.R. § 4.79, Diagnostic Code 6012, where continuous medication is required. The next higher evaluation of 20 percent disabling is available for glaucoma with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to required prescribed bed rest and treatment by a physician or other health care provider. Even higher ratings are warranted for greater degrees of symptomatology. Glaucoma is to be rated on the basis of visual impairment or incapacitating episodes, whichever results in a higher evaluation. In this case, as the evidence does not shows that the Veteran has visual impairment as a result of his glaucoma, the Board need not address such rating criteria. VA eye examinations in February 2010, July 2012, and May 2016 all show that continuous medication is not required for treatment. Although the Veteran reported to the 2016 examiner that his glaucoma was treated with drops until laser surgery in 2013, the 2010 and 2012 examination reports both specifically reflect that the Veteran was not on any medication for his glaucoma. The Veteran testified that he opted to have surgery instead of taking drops during his September 2015 hearing. A prescription dated September 15, 2017, shows that the Veteran was prescribed eye drops due to increased pressure. For the period prior to September 15, 2017, the evidence has not shown continuous medication required to treat the Veteran's glaucoma, nor has it shown incapacitating episodes, and the criteria for a compensable evaluation have not been met. The Board acknowledges that the Veteran chose to have surgery instead of taking medication; however, absent continuous medication being required, a compensable rating is not warranted prior to September 15, 2017. Beginning September 15, 2017, the evidence shows that medication is required to treat the Veteran's glaucoma, warranting a 10 percent evaluation as of that date. An even higher rating is not warranted as the evidence has not shown incapacitating episodes as defined by VA. The most pertinent evidence reviewed in reaching this decision includes the 2010, 2012, and 2016 VA examinations, as well as the VA and private treatment records assembled in conjunction with this appeal. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). C. Bilateral hearing loss Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests (Maryland CNC) together with the results of the puretone audiometry test. See 38 C.F.R. § 4.85. The results are then analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. "Puretone threshold average," as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. The appropriate rating is then determined by finding the intersection point for the two Roman numeral designations using Table VII. As an exceptional pattern of hearing impairment has not been shown, the Board need not further address the provisions of 38 C.F.R. § 4.86. In this case, a February 2010 VA hearing loss examination revealed average puretone hearing loss of 13 decibels in the right ear and 29 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 96 percent in the right ear and 94 percent in the left ear. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his puretone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing puretone threshold average and speech discrimination score also received a numeric designation of Level I. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a zero percent rating under DC 6100. A June 2012 VA hearing loss examination revealed average puretone hearing loss of 21 decibels in the right ear and 36 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 98 percent in the right ear and 94 percent in the left ear. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his puretone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing puretone threshold average and speech discrimination score also received a numeric designation of Level I. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a zero percent rating under DC 6100. A May 2016 VA hearing loss examination revealed average puretone hearing loss of 25 decibels in the right ear and 41 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 96 percent in the right ear and 94 percent in the left ear. The Veteran reported difficulty understanding speech in noise. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his puretone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing puretone threshold average and speech discrimination score also received a numeric designation of Level I. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a zero percent rating under DC 6100. Outside of these three examinations, there are no other contemporaneous audiological testing results of record (i.e., puretone threshold and Maryland CNC testing), and as such these three examinations constitute the only competent evidence of record for purposes of applying 38 C.F.R. § 3.385. In this regard, the record contains January 2009 and August 2015 audiograms; however while puretone thresholds are given, speech recognition scores in accordance with Maryland CNC testing are not included. As such, these records are not adequate for rating purposes. See 38 C.F.R. § 4.85. The Board would note that the findings shown on these examinations, if Table VIa were to be applied, would not support a compensable evaluation in any event. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann, 3 Vet. App. at 349. The Board has applied the results of the examinations during this appeal to 38 C.F.R. 4.85, Table VII, and a compensable rating is not warranted as shown above. As per Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the 2016 examination reflects consideration of functional limitations, and the Veteran has not asserted prejudice in that examination's findings. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366. D. Hypertension A minimum compensable evaluation of 10 percent is available for hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101, where the diastolic pressure is predominantly 100 or more or systolic pressure is predominantly 160 or more or where a veteran has a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. The next higher evaluation of 20 percent disabling is available for hypertension manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Even higher ratings are warranted for greater degrees of symptomatology. In this case, the Veteran has been shown to take medication for hypertension, as noted in February 2010, July 2012, and May 2016 VA examinations. It would be speculation for the Board to ascertain what his blood pressure would be absent the medication. Accordingly, and resolving any doubt in the Veteran's favor, the Board finds that a 10 percent evaluation is warranted for hypertension on account of this medication. That said, the Veteran has not at any time had systolic pressure at or above 200, or diastolic pressure at or above 110, and consequently there is no basis whatsoever for an evaluation in excess of 10 percent. The most pertinent evidence reviewed in reaching this decision includes VA examinations from February 2010, July 2012, and May 2016, as well as the VA and private treatment records assembled in conjunction with this appeal. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366. ORDER Entitlement to an initial compensable rating for glaucoma for the period prior to September 15, 2017, is denied. A 10 percent evaluation for glaucoma for the period beginning September 15, 2017, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial compensable rating for bilateral hearing loss is denied. A 10 percent evaluation for hypertension is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs