Citation Nr: 1808279	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  12-15 083	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to an initial compensable evaluation for bilateral hearing loss disability (BHL).

2.  Entitlement to a compensable evaluation for hypertension prior to June 9, 2017, and in excess of 10 percent thereafter.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

R.M.K., Counsel


INTRODUCTION

The Veteran had active service from April 1983 to April 2003.

This case came to the Board of Veterans' Appeals (Board) on appeal from June 2011 and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In October 2015 the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A copy of the transcript is associated with the record.

When this case was previously before the Board in May 2017, it was decided in part and remanded in part for additional evidentiary development.  It has since been returned to the Board for further appellate action.

In an August 2017 rating decision, the evaluation of hypertension was increased to 10 percent, effective June 9, 2017.  This did not satisfy the Veteran's appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  These records were reviewed in connection with the decision below.


FINDINGS OF FACT

1.  The Veteran's hearing impairment has been no worse than Level III Roman numeral designation for the right ear and a Level III designation for the left ear.

2.  Prior to June 9, 2017, the Veteran's hypertension was manifested by diastolic pressure between 60 and 92, though predominantly in the 60s and 70s.  The Veteran's systolic pressure ranged between 102 and 177, though predominantly in the 130s to 150s; continuous use of medication for treatment of hypertension was required, and the relief provided by medication is specifically contemplated by the applicable schedular rating criteria.

3.  Since June 9, 2017, the Veteran's hypertension was manifested by diastolic pressure less than 110 and systolic pressure less than 200; continuous use of medication for treatment of hypertension is required, and the relief provided by medication is specifically contemplated by the applicable schedular rating criteria.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable evaluation for BHL have not been met or approximated.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).

2.  The criteria for a compensable evaluation for hypertension prior to June 9, 2017, and in excess of 10 percent thereafter have not been met or approximated.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.14, 4.41, 4.104, 4.115 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a March 2011 letter.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017).  

Initial disability rating issues are generally considered "downstream" elements of the service connection claim.  Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (interpreting that separate notification is not required for the "downstream" issue of initial rating); 38 C.F.R. § 3.159 (b) (3) (i) (2017) (reflecting that there is no duty to provide VCAA notice upon receipt of a notice of disagreement).

Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports.

The Veteran was provided a hearing before the undersigned VLJ in October 2015.  As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary.  Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).  

This case was remanded in May 2017 to afford the Veteran VA examinations.  In June 2017 the Veteran was afforded VA examinations.  Accordingly, there has been substantial compliance with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).

Legal Criteria - BHL 

Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (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.

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.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(b).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average.  Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c).

"Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four.  This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d).

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e).

Provisions for evaluating exceptional patterns of hearing impairment are as follows.

(a) When the puretone thresholds 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 will be evaluated separately.

(b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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; the numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately. 38 C.F.R. § 4.86.

Analysis - BHL

In response to his claim, the Veteran was afforded a VA audiological evaluation in April 2011.  The Veteran reported difficulty hearing his alarm clock, that everything sounded muffled, and he had a hard time hearing conversations.  On examination his puretone thresholds were as follows:


HERTZ

500
1000
2000
3000
4000
AVG.
RIGHT

40
65
75
70
62.5
LEFT

35
60
70
65
57.5

Speech recognition was 84 percent in the right ear and 96 percent in the left ear.

Applying the values above to Table VI results in a Level III Roman numeral designation for the right ear and a Level II Roman numeral designation for the left ear.  Application of these designations to Table VII results in a 0 percent rating.  The Board has considered whether a higher rating than 0 percent for bilateral hearing loss is warranted by applying the exceptional hearing pattern provisions of 38 C.F.R. § 4.86; however, the exceptional hearing pattern criteria are not met. 

In response to the Board's remand, the Veteran was afforded a VA examination in June 2017 in which he reported being unable hear without his hearing aids and that things sounded muffled without his aids.  On examination his puretone thresholds were as follows:


HERTZ

500
1000
2000
3000
4000
AVG.
RIGHT

40
70
75
70
64
LEFT

35
65
75
70
61

Speech recognition was 86 percent in the right ear and 90 percent in the left ear.

Applying the values above to Table VI results in a Level III Roman numeral designation for the right ear and a Level III Roman numeral designation for the left ear.  Application of these designations to Table VII results in a 0 percent rating.  The Board has considered whether a higher rating than 0 percent for bilateral hearing loss is warranted by applying the exceptional hearing pattern provisions of 38 C.F.R. § 4.86; however, the exceptional hearing pattern criteria are not met. 

The Board notes that the Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  In accordance with this decision, the Board finds that the VA examiners sufficiently noted the effects the Veteran's hearing impairment had on his activities, to include difficulty hearing his alarm clock and conversations, being unable hear without his hearing aids, and things sounding muffled without his aids.

The Board also notes that VA treatment records contain complaints of hearing loss and use of hearing aids.

On review of the file, it is evident the criteria for an initial rating in excess of 0 percent under Diagnostic Code 6100 is not met.  Accordingly, entitlement to an initial rating in excess of 0 percent is denied.

Legal Criteria - Hypertension

Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2017).  Disability evaluations 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 his symptomatology with the criteria set forth in the ratings schedule.

Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017).  The evaluation of the same disability under various diagnoses is to be avoided.  See 38 C.F.R. § 4.14 (2017); see also Fanning v. Brown, 4 Vet. App. 225 (1993).  If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

The Veteran's hypertension is rated under Diagnostic Code 7101, which provides that a 10 percent rating is warranted for diastolic pressure predominately 100 or more, or; systolic pressure predominantly 160 or more, or; minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent disability rating requires diastolic readings of predominantly 110 or more or; systolic readings of 200 or more.  A 40 percent disability rating required diastolic readings of predominantly 120 or more.  A 60 percent disability rating required diastolic readings of predominantly of 130 or more.  38 C.F.R. § 4.104, Diagnostic Code 7101 (2017).

Analysis - Hypertension

Service connection for hypertension was granted with an evaluation of 0 percent, effective January 26, 2011.  The Veteran filed a claim for an increased rating in May 2013.  As such, the Board will focus on the disability level of his hypertension from one year immediately preceding the claim.  See 38 U.S.C.A. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2) (stating that in assessing the present level of disability, the relevant temporal focus is from one year immediately preceding the filing of the increased-rating claim). 

Private treatment records show blood pressure readings as follows: 158/80 in May 2012; 154/90 in June 2012; 157/74, 175/92, 177/81, 166/78 and 158/80  in July 2012; 146/62 and 134/70 in August 2012; 138/70 and 134/80 in September 2012; 160/80 and 102/60 in November 2012;142/68 in December 2012; 154/78 and 130/70 in January 2013; 142/60 and 116/58 in February 2013; 124/62 in May 2013; and 108/60 in June 2013.

The Veteran was afforded a VA examination in January 2014 in which his treatment was noted to include continuous medication, but he did not have a history of a diastolic blood pressure elevation to predominantly 100 or more.  His blood pressure readings were 138/74, 135/75, and 134/75.

In response to the Board's remand, the Veteran was afforded a VA examination on June 9, 2017, in which his treatment was noted to include continuous medication, but he did not have a history of a diastolic blood pressure elevation to predominantly 100 or more.  His blood pressure readings were 186/80, 182/87, and 175/99.

As noted above, in an August 2017 rating decision, the evaluation of hypertension was increased to 10 percent, effective June 9, 2017, the date of the aforementioned VA examination.

Based on the foregoing, the Board finds that prior to June 9, 2017, the Veteran's disability picture did not warrant a compensable rating.  Though the record indicates that the Veteran had a few instances of blood pressure readings with systolic pressure of 160 or greater, the vast majority readings documented in the claims file were below the threshold required for a compensable rating.  Thus, diastolic pressure predominately 100 or more or systolic pressure predominately 100 or more has not been shown by the evidence prior to June 9, 2017.  Since June 9, 2017, the Veteran's hypertension has been manifested by diastolic pressure less than 110 and systolic pressure less than 200.  Accordingly, entitlement to a compensable rating for hypertension prior to June 9, 2017, and in excess of 10 percent thereafter is denied.

Additional Considerations

VA must consider all favorable lay evidence of record.  38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in addition to the medical evidence above the Board has considered the lay evidence provided by the Veteran in the form of his correspondence to VA, his comments to the examiners, and his testimony before the undersigned in which he generally contends his disabilities should be rated higher than the current ratings. 

A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  However, the rating schedules for hearing loss and hypertension are a reasonable exercise of the Secretary's rulemaking authority.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Whereas the Veteran's hearing loss and hypertension have not been shown by medical or lay evidence to be worse than that measured during examination, the lay evidence does not support a claim for higher ratings.

Consideration has been given to assigning additional staged rating; however, at no during the period under review do the disabilities warrant higher ratings under the schedular criteria.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

Finally, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In this case, there is no evidence that the Veteran is unable to gain or maintain substantially gainful employment due to his hearing loss or hypertension disabilities.  Thus, entitlement to TDIU has not been raised by the record. 


ORDER

Entitlement to an initial compensable evaluation for bilateral hearing loss disability is denied.

Entitlement to a compensable evaluation for hypertension prior to June 9, 2017, and in excess of 10 percent thereafter is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs