Citation Nr: 1808360	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  11-04 051	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for anemia.  

2.  Entitlement to an increased rating in excess of 30 percent for coronary artery disease with aortic insufficiency for the period prior to May 18, 2016, and to a rating in excess of 60 percent thereafter.  

3.  Entitlement to an increased rating in excess of 20 percent for postoperative ACL repair of the right knee (right knee disability).  

4.  Entitlement to an increased rating in excess of 10 percent for bilateral hearing loss for the period prior to May 18, 2016, and to a rating in excess of 20 percent thereafter.  

5.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).  



REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Garcia, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1970 to February 1971, February 1973 to September 1975, December 1982 to September 1993, and October 1989 to September 1993.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

The Board notes that VA treatment records have been added to the Veteran's claims file since the issuance of the June 2016 Supplemental Statement of the Case (SSOC).  Although this evidence has not been initially reviewed by the Agency of Original Jurisdiction (AOJ), in a January 2018 letter, the Veteran's representative provided that the Veteran waived initial review of this evidence by the AOJ.  As such, the Board may proceed to adjudicate the Veteran's claim.  See 38 C.F.R. § 20.1304(c) (2017).  

The Board observes that in a May 2014 statement, the Veteran raised the issue of entitlement to Combat-Related Special Compensation (CRSC), which is awarded to eligible military retirees for combat-related disabilities.  See 10 U.S.C. § 1413a.  Claims for entitlement to CRSC are adjudicated by the military department from which the claimant retired.  See 10 U.S.C. § 1413a(d).  As such, the Veteran's claim of entitlement to CRSC is not under the jurisdiction of VA, and the Veteran should pursue any claim for CRSC with the military department from which he retired.  

The issues of entitlement to service connection for anemia, entitlement to increased ratings for coronary artery disease and a right knee disability, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.  


FINDING OF FACT

During the period on appeal, audiometric examinations correspond to no worse than level II hearing loss for the right ear and level V hearing loss for the left ear prior to May 18, 2016, and to no worse than level VII hearing loss for the right ear and level IV hearing loss for the left ear thereafter.  


CONCLUSION OF LAW

The criteria for a disability rating greater than 10 percent prior to May 18, 2016 for bilateral hearing loss, and to a rating in excess of 20 percent thereafter, have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.85 Diagnostic Code 6100 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

VA's duty to notify was satisfied by a letter dated in December 2009.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

During the course of the appeal, the Veteran was afforded a VA hearing loss and tinnitus examination in May 2016.  The Board observes that in an October 2017 brief, the Veteran's representative maintained that the medical examination report was inadequate, as the examiner did not adequately assess the Veteran's condition "at any time prior to assigning ratings, albeit warranting a rating in excess of 10 percent initially, and in excess of 20 percent prior to May 18, 2016."  

The Board has considered the Veteran's representative's contention but finds that the May 2016 VA examination report is adequate for rating purposes and that no additional medical examination or opinion is required to address the severity of the Veteran's bilateral hearing loss prior to May 18, 2016.  First, VA's duty to assist does not require it to provide retrospective medical opinions.  See, e.g., Chotta v. Peake, 22 Vet. App. 80, 85 (2008).  Second, as the December 2009 VCAA notice provides, following VA's receipt of the Veteran's claim for an increased rating, the RO requested a VA audio examination.  However, as reflected in a report of general information dated later the same month, the Veteran called VA to inform it that he was not going to attend the scheduled audio examination because VA already "ha[d] enough information."  Significantly, applicable VA regulations provide that when a claimant, without good cause, fails to report for a scheduled examination in conjunction with a claim for an increase, the claim shall be denied.  38 C.F.R. § 3.655(a)-(b).  Thus, in light of the fact that the Veteran did not show good cause for failure to attend the VA audio examination that was scheduled to take place in or around January 2010, and the fact that VA's duty to assist does not require it obtain retrospective medical opinions, no additional medical opinion is needed prior to adjudicating the Veteran's claim.  

The Veteran has not raised, nor does the record otherwise suggest, any other issues regarding the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying the Scott to duty to assist argument).  

II.  Increased Rating

	Legal Criteria

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  See generally 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § 4.27.  

VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," regardless of whether a case involves an initial rating.  E.g., Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  

When 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 for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  

As pertinent here, prior to May 18, 2016, the Veteran's bilateral hearing loss disability was assigned a 10 percent disability rating pursuant to Diagnostic Code 6100.  Since May 18, 2016, it has been assigned a 20 percent disability rating.  Evaluations for defective hearing under Diagnostic Code 6100 are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85, Tables VI, VII.  To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness.  Table VI is used to determine the Roman numeral designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores.  Id.  Where hearing impairment is based only upon pure tone threshold average due to use of the speech discrimination test being inappropriate, Table VIa is used to determine the Roman numeral designation.  Id.  The Roman numeral designations are then applied to Table VII to determine the appropriate rating for hearing impairment.  Id.  

When there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned.  38 C.F.R. §§ 4.85, 4.86, Table VIa.  This alternative method for rating hearing loss disability may be applied if the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the pure tone threshold at 1000 Hertz is 30 or less, and at 2000 Hertz is 70 or more.  38 C.F.R. § 4.86.  Each ear is to be evaluated separately under this provision.  Id.  

Ratings for hearing impairment under Diagnostic Code 6100 are derived by a mechanical application of the Rating Schedule to the Roman numeral designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  

	Factual Background and Legal Analysis

The Veteran contends that he is entitled to a rating in excess of 10 percent rating for his bilateral hearing loss disability prior to May 18, 2016, and to a rating in excess of 20 percent thereafter.  

During the pendency of a prior claim for a rating increase for his bilateral hearing loss disability, the Veteran was afforded a VA audio examination in February 2009.  Audiometric testing was performed, and based on an air conduction study, the Veteran's right ear pure tone thresholds, in decibels, were 45 at the 1000 Hertz frequency, 65 at the 2000 and 3000 Hertz frequencies, and 75 at the 4000 Hertz frequency.  His left ear pure tone thresholds, in decibels, were 40 at the 1000 Hertz frequency, 55 at the 2000 Hertz frequency, 70 at the 3000 Hertz frequency, and 75 at the 4000 Hertz frequency.  The average of pure tone threshold findings at the 1000, 2000, 3000, and 4000 Hertz frequencies was 61.3 decibels in the right ear and 60 decibels in the left ear.  The Veteran's Maryland CNC speech recognition scores were 92 percent for the right ear and 68 percent for the left ear.  

The results of the February 2009 audiometric testing resulted in a right ear Roman numeral designation of level II and a left ear Roman numeral designation of level V.  See 38 C.F.R. § 4.85, Table VI.  After applying these designations to Table VII, the result was a 10 percent rating for the Veteran's bilateral hearing loss disability.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  

During the course of the appeal, the Veteran was afforded a VA audio examination in May 2016.  Tympanometry findings showed normal acoustic immittance and ipsilateral acoustic reflexes, bilaterally, and abnormal contralateral acoustic reflexes, bilaterally.  Audiometric testing was performed, and based on an air conduction study, the Veteran's right ear pure tone thresholds, in decibels, were 50 at the 1000 Hertz frequency, 70 at the 2000 Hertz frequency, 75 at the 3000 Hertz frequency, and 80 at the 4000 Hertz frequency.  His left ear pure tone thresholds, in decibels, were 50 at the 1000 Hertz frequency, 60 at the 2000 Hertz frequency, 65 at the 3000 Hertz frequency, and 75 at the 4000 Hertz frequency.  The average of pure tone threshold findings at the 1000, 2000, 3000, and 4000 Hertz frequencies was 68.75 decibels in the right ear and 62.5 decibels in the left ear.  The pure tone test results were noted to be valid for rating purposes.  The Veteran's Maryland CNC speech recognition scores were 64 percent for the right ear and 76 percent for the left ear, and the examiner noted that use of the speech discrimination scores were appropriate for the Veteran.  As for the functional impact of his bilateral hearing loss disability, the Veteran reported that it made his life "miserable" and that it made him "socially isolated" because he could not understand what was being said to him, especially against background noise.  The examiner noted that the Veteran wore hearing aids that were first fitted in 1991 with the Navy, with the most recent pair fitted through a VA Medical Center at least two years ago.  

As both pure tone thresholds and speech discrimination tests were performed, Table VI must be used to determine the Roman numeral designations for the Veteran's ears.  See 38 C.F.R. § 4.85(a), (b).  Applying the results of the May 2016 audiometric testing to Table VI of the Rating Schedule results in a right ear Roman numeral designation of level VII and a left ear Roman numeral designation of level IV.  See 38 C.F.R. § 4.85, Table VI.  Applying these Roman numeral designations to Table VII, the result is a 20 percent rating for the Veteran's bilateral hearing loss disability.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  

Because none of the above-noted audiometric testing results show pure tone thresholds at each of the four specified frequencies of 55 decibels or more in either ear, or pure tone threshold of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, an exceptional pattern of hearing impairment is not shown for either ear during the course of the appeal.  As such, the audiometric findings do not warrant consideration under 38 C.F.R. § 4.86.  

Given this evidence, the record does not support awarding a rating higher than 20 percent for the Veteran's bilateral hearing loss disability at any time during the appeal period.  Additionally, in light of the fact that the record contains no audiometric test results during the period on appeal prior to May 18, 2016, to include as due to the Veteran's failure to report for a VA audio examination scheduled in or around January 2010 without a showing of good cause, there are no objective audiometric test results to warrant a rating in excess of 10 percent prior to May 18, 2016.  Although the Veteran has indicated that a rating in excess of 10 percent is warranted for his bilateral hearing loss disability prior to May 18, 2016, and that a 20 percent rating is warranted thereafter, the rating criteria for hearing loss requires the mechanical application of rating criteria to objectively-obtained audiometric testing results.  See Lendenmann, 3 Vet. App. at 349-50.  The 10 percent rating assigned prior to May 18, 2016, and the 20 percent rating assigned thereafter, are supported by the evidence of record, and there is no indication that the audiological examinations set forth above are inadequate.  In addition, the Veteran has not asserted, nor does the record otherwise suggest, that there is any other potentially applicable diagnostic code that would warrant a higher rating for his bilateral hearing loss disability at any time during the pendency of the appeal.  
Finally, the Board has considered the Veteran's reports describing his hearing loss disability, including his representations that he has difficulty understanding people speak, particularly against background noise, and that his hearing loss disability makes him socially isolated.  The Veteran is certainly competent to describe his observations, and the Board does not doubt that his hearing loss disability affects his daily functioning.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  In this case, however, the objective medical findings do not support awarding a rating greater than 10 percent for the Veteran's bilateral hearing loss disability prior to May 18, 2016, nor do they support awarding a rating greater than 20 percent thereafter.  See 38 C.F.R. § 4.85, Tables VI, VII, Diagnostic Code 6100; Lendenmann, 3 Vet. App. at 349-50.  

As the preponderance of the evidence is against assigning a rating in excess of 10 percent prior to May 18, 2016 for the Veteran's bilateral hearing loss disability, or a rating in excess of 20 percent thereafter, the Veteran's claim must be denied.  


ORDER

Entitlement to a rating in excess of 10 percent for the Veteran's bilateral hearing loss disability prior to May 18, 2016, and to a rating in excess of 20 percent thereafter, is denied.  


REMAND

Before a decision can be reached on the Veteran's claims of entitlement to service connection for anemia, entitlement to increased ratings for coronary artery disease and for a right knee disability, and entitlement to a TDIU, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  



	Anemia

The Veteran contends that he is entitled to service connection for anemia.  As highlighted in an August 2016 brief from his representative, and as contained in the record, the Veteran's service treatment records show that a June 1993 laboratory report associated with the Veteran's separation examination shows abnormal values for his RBC (4.44 x 106, with normal values listed as 4.70 to 18.0), and for his HBG (13.4 G/DL, with normal values listed as 13.5 to 18.0).  Additionally, several months following the Veteran's separation from service, a January 1994 VA Form 10-2570a, Health Questionnaire for Dental Outpatients, indicates that the Veteran was rejected from donating blood due to being anemic.  Finally, as noted by the Veteran's representative, the Veteran has a history of a diagnosis of, and treatment for, hematuria (loss of blood through the urine).  In light of this background, a VA examination that addresses the nature and etiology of the Veteran's anemia is warranted on remand.  See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  

	Coronary Artery Disease

The Veteran contends that he is entitled to an increased rating in excess of 30 percent for coronary artery disease for the period prior to May 18, 2016, and to a rating in excess of 60 percent thereafter.  Based on a review of the claims file, it appears that there are outstanding treatment records that might be pertinent to the Veteran's claim.  Specifically, a January 2017 non-VA care hospital notification note provides that the Veteran was admitted to Sentara Princess Anne Hospital in Virginia Beach for chest pain.  As such, a remand is warranted to attempt to obtain these and any other outstanding treatment records that might be pertinent to the Veteran's claim.  See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1).  

	Right Knee Disability

The Veteran contends that he is entitled to an increased rating in excess of 20 percent for his right knee disability.  Based on a review of the claims file, it appears that there are outstanding treatment records that might be pertinent to the Veteran's claim.  Specifically, a May 2015 VA primary care note indicates that the Veteran received treatment in the Sentara system for his right knee with a physician identified as Dr. Balanos, and that X-ray images of his right knee were taken.  Therefore, a remand is warranted to attempt to obtain these and any other outstanding treatment records that might be pertinent to the Veteran's claim.  See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1).  

	TDIU

The Veteran contends that he is entitled to a TDIU, as he is unable to work due to his service-connected disabilities.  The Veteran's service-connected disabilities include coronary artery disease, prostate cancer, postoperative ACL repair of the right knee, bilateral hearing loss, bilateral tinnitus, bursitis of the right shoulder, seborrheic dermatitis, and erectile dysfunction.  The Veteran's representative suggested in an October 2017 brief that a VA medical opinion addressing the combined effects of the Veteran's multiple service-connected disabilities is warranted.  In light of the Veteran's representative's contention, and the fact that the record does not include medical opinions during the course of the appeal that address the functional impact of each of the Veteran's service-connected disabilities, either alone or in combination, a medical opinion addressing the functional impact of the Veteran's disabilities is warranted on remand.  See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

Accordingly, the case is REMANDED for the following action:

1.	Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers.  In particular, obtain any outstanding treatment records from Dr. Balanos with the Virginia Beach Sentara healthcare system that pertain to the Veteran's right knee disability, and any treatment records from the Sentara Princess Anne Hospital in Virginia Beach that pertain to the Veteran's coronary artery disease.  

Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary.  If VA attempts to obtain any outstanding records that are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159(e).  

2.	After completing the development requested in number (1) above, schedule the Veteran for a VA examination with an appropriate medical examiner to address the nature and etiology of his claimed anemia disability.  The claims folder, including a copy of this remand, must be made available to, and reviewed by, the examiner.  The examiner should respond to the following:  
            
The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's anemia was caused by, or is otherwise etiologically related to, his active military service.  

In rendering an opinion, the examiner should specifically consider and address the June 1993 laboratory results contained in the Veteran's STRs that show abnormal values for RBC and HGB; the January 1994 VA Health Questionnaire for Dental Outpatients, which notes that the Veteran was rejected from donating blood due to anemia; and the Veteran's history of a diagnosis of, and treatment for, hematuria, which are detailed above.  
A complete rationale should be provided for any opinion expressed.  If the examiner is unable to reach an opinion without resorting to speculation, he or she should explain the reasons for such inability and indicate whether any further evidence or information would be useful in rendering the opinion being sought.  

3.	After completing the development requested in number (1) above, obtain a medical opinion(s) from an appropriate medical examiner(s) regarding the Veteran's claim for a TDIU.  The claims folder, including a copy of this remand, must be made available to, and reviewed by, the examiner.  If, and only if, determined necessary by the examiner, the Veteran should be scheduled for a VA examination(s).  The examiner(s) should respond to the following:  

The examiner(s) should address the functional impact associated with the Veteran's service-connected disabilities, to include coronary artery disease, prostate cancer, postoperative ACL repair of the right knee, bilateral hearing loss, bilateral tinnitus, bursitis of the right shoulder, seborrheic dermatitis, and erectile dysfunction.  If possible, the examiner should address the functional impact of the Veteran's service-connected disabilities when considered in combination.
            
A complete rationale should be provided for any opinion expressed.  If the examiner is unable to reach an opinion without resorting to speculation, he or she should explain the reasons for such inability and indicate whether any further evidence or information would be useful in rendering the opinion being sought.
4.	After completing the development requested above, in addition to any other development deemed necessary by the AOJ, re-adjudicate the Veteran's claims.  If any benefit sought is not granted in full, furnish the Veteran and his representative an SSOC, and return the case to the Board, if otherwise in order.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112.  






______________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs