Citation Nr: 20004854 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 14-28 887 DATE: January 22, 2020 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to increased rating in excess of 20 percent for a lumbar spine disability is remanded. Entitlement to increased rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to increased rating in excess of 20 percent for left lower extremity radiculopathy is remanded. FINDING OF FACT For the entire initial rating period on appeal, the Veteran’s bilateral hearing loss disability has been manifested by hearing acuity no worse than Level III in the right ear and Level III in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to September 1983. In October 2018, the Board remanded the case for further development, to include providing the Veteran with a new VA examination for the service-connected bilateral hearing loss and for the RO to issue a supplemental statement of the case for the increased rating claims for the lumbar spine disability and associated bilateral lumbar radiculopathy. Increased Rating for Bilateral Hearing Loss Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral. The Veteran in this case asserts that his hearing loss is worse than the currently assigned noncompensable rating. However, for the reasons expressed below, the Board finds that a compensable rating is not warranted. In July 2014, the Veteran underwent a VA audiology examination, at which time pure tone thresholds, in decibels, were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 44 30 30 50 65 LEFT 49 35 40 60 60 Speech recognition score was 80 percent in the right ear and 84 percent in the left ear. The examiner noted that test results were valid for rating purposes. Here, applying the July 2014 audiometric result to Table VII, the Veteran had Level III hearing acuity in the right ear and Level II hearing acuity in the left ear, resulting in a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional hearing pattern was not shown. A higher rating is not warranted based on these audiometric findings. According to January 2017 VA audiology treatment records, the Veteran reported that his spouse complained he turned up the volume on the television too high, and at times, he had difficulty understanding people when they speak. Pure tone threshold in decibels were not recorded; however, the audiologist noted that the Veteran had moderately severe sloping to severe hearing loss in the right ear and mild sloping to moderately-severe hearing loss in the right ear. Although unclear if Maryland CNC speech recognition score was used, the reported word recognition score was 80 percent in the right ear and 88 percent in the left ear. The Veteran had his hearing aids checked in April 2017. Additional VA treatment records dated in December 2018 noted that the Veteran had bilateral hearing loss and needed audiology testing. Subsequent to the Board’s October 2018 remand, the Veteran underwent an additional VA audiology examination in October 2019, at which time pure tone thresholds, in decibels, were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 49 35 30 55 75 LEFT 43 15 40 55 60 Speech recognition score was 76 percent in the right ear and 82 percent in the left ear. The examiner noted that test results were valid for rating purposes. Here, applying the October 2019 audiometric result to Table VII, the Veteran had Level III hearing acuity in the right ear and Level III hearing acuity in the left ear, resulting in a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional hearing pattern was not shown. A higher rating is not warranted based on these audiometric findings. Based on the foregoing, the Board finds that a compensable rating for bilateral hearing loss is not warranted as the audiometric results do not meet the criteria for a compensable rating. The Board considered the Veteran’s disagreement with the assigned rating. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment. Furthermore, the opinions and observations of the Veteran alone are not sufficient to address the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. § 3.159(a)(1) and (2). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Here, regarding functional effects of the Veteran’s hearing loss, the July 2014 VA examiner noted the Veteran’s reports that he was unable to hear at low volumes. The October 2019 VA examiner indicated that the Veteran could not distinguish words. Accordingly, there is no basis to support an assignment of a compensable rating for the Veteran’s service-connected bilateral hearing loss. As a preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). REASONS FOR REMAND A remand is necessary to obtain outstanding private treatment records identified by the Veteran and to provide him with a new adequate VA examination to determine the current severity of the service-connected lumbar spine disability and associated bilateral lumbar radiculopathy. Subsequent to the Board’s October 2018 remand, which instructed the RO to readjudicate the claim in a SSOC, the Veteran submitted medical treatment records that showed he was scheduled to undergo an additional back surgery. In response to the SSOC, the Veteran asked VA to wait the full 30 days so he can submit more evidence after his surgery, which was to take place in November 2019. To-date, the Veteran has not submitted such evidence; however, given that he has identified additional relevant records, VA’s duty to assist him in obtaining this evidence is triggered. In addition, during an April 2018 VA back examination, the Veteran reported having both flare-ups, as well as functional loss after repeated use over time. The examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and/or during flare-ups. The examiner added that it was not possible to determine, without resorting to mere speculation, to estimate loss of range of motion because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. However, the examiner did not use the information provided by the Veteran or obtain additional information from the Veteran or the treatment records with respect to the frequency, duration, characteristics, severity, or functional loss during flare-ups and after repetitive use. The Court held that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Accordingly, obtaining a new VA examination is necessary prior to deciding the claim on the merits. The increased rating claims for right and left lumbar radiculopathy are intertwined with the issue of entitlement to an increased rating for a lumbar spine disability, and as such, they will be deferred pending the proposed development. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran and ask him to identify any treatment he received for his claimed lumbar spine disability, to specifically include records pertaining to the November 2019 back surgery, to include from Midlands Orthopaedics & Neurosurgery. Then, provide him with VA Forms 21-4142, Authorization and Consent to Release Information to the VA, and assist him in obtaining the identified records. Advise him that he may submit such records if he so chooses. 3. Then, provide the Veteran with a VA examination to help identify the current severity of the lumbar spine disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the lumbar spine disability throughout the pendency of the appeal from October 2010, forward. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. (d) Elicit from the Veteran all signs and symptoms of the diagnosed bilateral lumbar radiculopathy and address the current severity of both the right and left lower extremity radiculopathy. 4. Thereafter, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.