Citation Nr: 20005181 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 16-13 528 DATE: January 23, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss for accrued benefits and/or substitution purposes is denied. REMANDED Entitlement to service connection for coronary artery disease, including as due to exposure to herbicide agents, for accrued benefits and/or substitution purposes is remanded. FINDING OF FACT The Veteran demonstrated level II hearing acuity in the left ear and level XI hearing acuity in the right ear. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for bilateral hearing loss for accrued benefits and/or substitution purposes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.85, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from June 1962 to February 1966. He died in December 2018. The Appellant is the Veteran’s surviving spouse. In May 2019, the Appellant was notified that she met the eligibility criteria for substitution as the claimant in the Veteran’s appeal. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) rating decision dated in June 2013. The Board remanded these claims to the AOJ in September 2018 for additional development. The case has since returned to the Board for adjudication. 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss for accrued benefits and/or substitution purposes The Veteran contended that the disability rating assigned for his bilateral hearing loss should have been higher. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already-established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As the Veteran filed his claim for an increased rating in September 2011, the appeal period stems from September 2010. Hearing loss is evaluated under DC 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Additionally, VA must analyze the functional effects caused by a hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). 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. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “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 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). 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). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the puretone threshold is 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. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). In March 2011, the Appellant submitted a statement in support of the Veteran’s claim. She explained that she and her family constantly had to repeat themselves so the Veteran could hear them, and that he watched television at a maximum volume. The Veteran submitted private audiology reports dated in November 2010 and August 2011. In August 2011, his audiologist wrote that the Veteran’s right ear was essentially nonfunctioning and was beyond rehabilitation. The left ear was essentially unchanged since his last evaluation in February 2006. The Veteran was using a hearing aid in the left ear. The Veteran underwent a VA examination in April 2012 for his bilateral hearing loss. The results were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 105+ 105+ 105+ 105+ 105 LEFT 35 70 70 65 60 The VA examiner determined that the Veteran’s speech discrimination score using the Maryland CNC word list was 0 percent in his right ear and 92 percent in his left ear. The examiner indicated that use of the speech discrimination scores was appropriate for rating. The Veteran reported that the functional impact of his hearing loss disability was that he had hearing difficulties with background noise. In August 2013, the Veteran submitted a statement in which he explained that he only understood some of what was said to him, and that he experienced dizziness with his hearing loss. The claims file also includes private audiological testing results from September 2012 and April 2016. In June 2019, a VA examiner reviewed the April 2016 results. The examiner did not state that the results were appropriate for rating, or indicate whether the Maryland CNC word list was used. The functional impact given was that the Veteran would have had difficulty understanding speech in noisy settings and at a distance, as well as difficulty hearing the television at a normal volume, warning alarms and signals. Based on the evidence above, the Board finds that a disability rating in excess of 10 percent for bilateral hearing loss is not warranted. Specifically, applying Table VI to the Veteran’s April 2012 VA examination results, the Veteran had Level II hearing in the left ear and Level XI hearing in the right ear. Thus, relying on this audiometric testing, a 10 percent rating would be warranted. See 38 C.F.R. § 4.85, Table VII. The Board notes further that even applying the audiometry results for the right ear to Table VIA, would not change the hearing acuity level as Level XI is the maximum available for assignment. The Board acknowledges the Veteran’s and Appellant’s statements that the Veteran had difficulty hearing. While the statements of the Veteran and his spouse are competent and credible, in light of the holdings of the U.S. Court of Appeals for Veterans Claims in Martinak v. Nicholson, 21 Vet. App. at 454 and Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Veteran's inability to hear or understand speech or to hear other sounds in various contexts have been sufficiently measured during the VA examination and such functional effects are contemplated by the schedular rating criteria. VA examination reports represent the best evidence for deciding the claim as such reports contain comprehensive audiometric testing sufficient for rating the disability. The Board gives the April 2012 VA examination significant weight, as it addresses all the rating criteria. Thus, even after considering the functional impact of this disability, the evidence shows that a rating in excess of 10 percent for bilateral hearing loss is not warranted at any time on appeal. The Board also acknowledges that the record contains private audiology test results. However, the private records, including the audiologist’s statement, and the June 2019 VA examiner’s review of the records, are not sufficient for rating purposes. Therefore, they receive little weight. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-55. REASONS FOR REMAND 1. Entitlement to service connection for coronary artery disease, including as due to exposure to herbicides for accrued benefits and/or substitution purposes is remanded. The Veteran’s naval service, including foreign or sea service during the Vietnam Era, and his medals, to include the Vietnam Service Medal, warrant that his claims related to herbicide exposure be revisited in light of Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), and in light of the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act). Pub. L. 116-23 (codified at 38 U.S.C. § 1116A. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The U.S. Court of Appeals for Veterans Claims has recently held that “Republic of Vietnam” includes the 12 nautical mile territorial sea. See Procopio, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). The determination of whether a veteran served within the 12 nautical mile territorial sea of Vietnam should be made on consideration of all procurable and assembled data. Whether an appeal may be adjudicated or requires remand for further development is a matter of judicial discretion based on the evidence of record. VAOPGCPREC 1-2019. Moreover, the BWN Act provides that, “a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to such agent during that service.” Pub. L. 116-23 (codified at 38 U.S.C. § 1116A(b). An April 2012 memorandum indicates that the Veteran was attached to a unit that was assigned to a ship or to shore during the Vietnam era. The unit was credited with Vietnam service, but there was no proof that the Veteran had in-country service in Vietnam. However, the Veteran reported that he was also on a tanker in a Vietnamese port. In addition, the Veteran submitted an article indicating that the USS Enterprise, on which he served, was near the Vietnamese shore in December 1965. It is unclear whether the Veteran’s service on the USS Enterprise qualifies within the guidelines of Procopio and the BWN Act. Therefore, a remand is necessary to attempt to obtain deck logs or any other official military records that may support that the Enterprise was located within 12 nautical miles of the Republic of Vietnam. It is important to note that at this time, exposure to herbicides has not been accepted or established. The matters are REMANDED for the following action: 1. Undertake appropriate action to verify or otherwise obtain Navy ship records, and any other evidence, regarding the location of any service in the territorial waters of Vietnam, pursuant to the BWN Act, the decision in Procopio v. Wilkie and OGC Advisory Opinion 1-19. If the search for corroborating information leads to negative results, the AOJ should notify the Appellant, explain the efforts taken to obtain this information, and describe any further action to be taken. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.