Citation Nr: 19123743 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 16-59 957 DATE: March 29, 2019 ISSUES 1. Entitlement to service connection for a right hand disability. 2. Entitlement to service connection for a left hand disability. 3. Entitlement to a disability rating in excess of 10 percent prior to September 28, 2018, and in excess of 20 percent thereafter for the service-connected bilateral hearing loss disability (BHL). ORDER Entitlement to a disability rating in excess of 10 percent prior to September 28, 2018, and in excess of 20 percent thereafter for the service-connected BHL is denied. REMANDED Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a left hand disability is remanded. FINDINGS OF FACT 1. Prior to September 28, 2018, the Veteran’s BHL impairment was no worse than Level IV Roman numeral designation for the left ear and a Level IV for the right ear. 2. From September 28, 2018, the Veteran’s BHL impairment has been no worse than Level V Roman numeral designation for the left ear and a Level V for the right ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent prior to September 28, 2018, and in excess of 20 percent thereafter for the service-connected BHL have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1948 to July 1949 with subsequent service in the Army Reserves. This case comes before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse testified at a Board hearing in April 2017. A transcript of the hearing is of record. When this case was most recently before the Board in May 2018, it was remanded for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives in regards to the claim for an increased rating for BHL; and for this issue, the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a January 2019 rating decision, the evaluation of BHL was increased to 20 percent effective September 28, 2018. This did not satisfy the Veteran’s appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a) (2) (West 2014). VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Disability Rating Legal Criteria and Analysis Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). 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 military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). 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. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran’s service-connected BHL. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board notes that when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. 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. In the present case, service connection for BHL was granted in a December 2014 rating decision with an evaluation of 10 percent effective July 12, 2013. The Veteran was afforded a VA audiological evaluation in November 2014 in which he reported that his hearing loss did not impact ordinary conditions of daily life, including the ability to work. On examination his puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. LEFT 35 30 35 50 60 44 RIGHT 40 45 45 45 50 46 Speech recognition was percent in the left ear was 74 percent and 68 percent in the right ear. Applying the values above to Table VI results in a Level IV Roman numeral designation for the left ear and a Level IV for the right ear. Application of these designations to Table VII results in a 10 percent rating. The Board has considered whether a higher rating 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 Veteran and his spouse testified before the undersigned in April 2017 as to his hearing impairment to include an inability to hear even the television and an inability to hear her even when she was yelling. The Veteran was afforded a VA-contracted examination in November 2017 in which he reported that his hearing loss did not impact ordinary conditions of daily life, including the ability to work. On examination his puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. LEFT 25 20 20 45 50 34 RIGHT 15 20 20 25 25 23 Speech recognition was 68 percent in the left ear and 76 percent in the right ear. Applying the values above to Table VI results in a Level IV Roman numeral designation for the left ear and Level III for the right ear. Application of these designations to Table VII results in a 10 percent rating. The Board has considered whether a higher rating 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. On review of the file, it is evident, and the preponderance of the evidence shows, that the criteria for a disability rating in excess of 10 percent prior to September 28, 2018, under Diagnostic Code 6100 is not met. Accordingly, the claim is denied. The Veteran was afforded a VA-contracted examination for his BHL in September 2018 in which he stated that his hearing loss made it difficult to understand people when they were talking to him. On examination his puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. LEFT 40 40 40 55 65 50 RIGHT 40 45 45 65 65 55 Speech recognition was 70 percent in the left ear and 70 percent in the right ear. Applying the values above to Table VI results in a Level V Roman numeral designation for the left ear and Level V for the right ear. Application of these designations to Table VII results in a 20 percent rating. The Board has considered whether a higher rating 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 examiners sufficiently noted the effects the Veteran’s hearing impairment had on his activities, to include difficulty understanding people. On review of the file, it is evident, and the preponderance of the evidence shows, that the criteria for a disability rating in excess of 20 percent after September 28, 2018, for the service-connected BHL under Diagnostic Code 6100 is not met. Accordingly, the claim is denied. REASONS FOR REMAND The Veteran testified before the undersigned that during service his hands sustained soap powder burns while he was on kitchen porter duty. The Veteran submitted a photograph from service showing him with a bandaged right hand and testified that his left hand was injured and bandaged as well. The Veteran stated that his hands have bothered him since service. Historically, the Board remanded this issue in September 2017 to afford the Veteran a VA examination. Subsequently, in the May 2018 remand, the Board found that the Veteran should be scheduled for a neurological examination to determine the current nature and likely etiology of any neurological disability of the hands. In response to the May 2018 remand, the Veteran was afforded a VA-contracted examination in September 2018 in which no diagnosis was provided. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that it was less likely that the Veteran’s bilateral hand condition was related to military service as there were no medical records showing diagnosis or treatment for the bilateral condition during active duty. The Board finds that clarification is required from the September 2018 examiner. Namely, as no diagnosis was provided, it is unclear as to what bilateral hand condition the examiner is referring to in the accompanying opinion. Here, the examiner based this negative opinion on the absence of documented disability diagnosis or treatment during service. However, regulations do not preclude service connection for a disability which first met VA’s definition of disability after service. 38 C.F.R. § 3.385 (2017); Ledford v. Derwinski, 3 Vet. App. 87 (1992). Importantly, the Veteran’s service treatment records are unavailable due to destruction in the 1973 National Personnel Records Center (NPRC) fire. See also O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (where it appears that a veteran’s service records are incomplete, the Board’s obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened). As such, it is specifically pertinent in this case that the mere absence of in-service evidence of a disability during service is not fatal to a service connection claim. See Ledford, 3 Vet. App. 87, 89. Finally, the Board notes that in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), the Federal Circuit found that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” The case reversed years of precedent that had held that “pain alone is not a disability for the purposes of VA disability compensation.” Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Accordingly, the Board finds that the question of whether the Veteran’s pain alone results in functional impairment should be addressed on remand. The matters are REMANDED for the following action: 1. Provide access to the electronic claims file to the September 2018 examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran’s claimed left and right hand disabilities. The electronic claims file must be made available to and reviewed by the examiner. An examination should be performed if deemed necessary by the examiner providing the requested opinion. The examiner should address the following: a) Identify the bilateral hand condition mentioned in the September 2018 opinion. b) Opine whether it is at least as likely as not (50 percent probability or greater) that any above-identified right and left hand disabilities had onset in service or are otherwise etiologically related to service, to include the Veteran's reported powder burn injury. In rendering the above opinion, the examiner is advised that the mere absence of in-service evidence of a disability during service is not fatal to a service connection claim. See Ledford, 3 Vet. App. 87, 89. c) To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hand pain alone. The rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. Upon completion of the addendum ordered above, review the report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel