Citation Nr: 20005307 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 14-09 209A DATE: January 23, 2020 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a respiratory disability, to include asbestosis, reactive airway disease, emphysema, asthma, and chronic obstructive pulmonary disease (COPD), is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of an infection of the right long finger is remanded. FINDING OF FACT The Veteran demonstrated, at worst, level III hearing acuity in the right ear and level III hearing acuity in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1968 to September 1972. 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 November 2009. 1. Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that the disability rating assigned for his bilateral hearing loss should be 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). 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). As the evidence below shows that the Veteran does not have an exceptional hearing loss, these provisions are not applicable. The Veteran underwent a VA examination in October 2009 for his bilateral hearing loss. The results of puretone audiometry test were as follows: Right Ear 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average 15 dB 30 dB 55 dB 65 dB 41.25 dB Left Ear 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average 15 dB 35 dB 50 dB 65 dB 41.25 dB The VA examiner determined that the Veteran’s speech discrimination score using the Maryland CNC word list was 92 percent in his right ear and 88 percent in his left ear. The examiner did not certify that the use of the speech discrimination test is not appropriate. The Veteran reported that the functional impact of his hearing loss disability was that he cannot always understand what people are saying. In June 2010, the Veteran testified before a Decision Review Officer. The Veteran testified that he has hearing aids, but without them he understands very little, especially in noisy environments. He said that he cannot participate in, or carry on, conversations in those circumstances. The Veteran testified that he tries to read lips. The Veteran’s wife testified that the Veteran’s hearing has gotten worse over the years, and she will repeat conversations to him loudly that he cannot hear. The Veteran had audiometric testing at a VA medical center (VAMC) in June 2011. Word recognition scores were reported to be 88 percent for the right ear and 92 percent for the left ear. The Veteran underwent another VA examination in May 2014. The results of puretone audiometry test were as follows: Right Ear 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average 15 dB 50 dB 55 dB 65 dB 46 dB Left Ear 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average 20 dB 40 dB 50 dB 65 dB 44 dB The VA examiner determined that the Veteran’s speech discrimination score using the Maryland CNC word list was 90 percent in his right ear and 94 percent in his left ear. The examiner indicated that use of word recognition scores was appropriate for rating purposes. The Veteran reported that the functional impact of his hearing loss disability was that he was having a harder time understanding conversations, even with hearing aids. The Veteran was afforded another VA examination for bilateral hearing loss in June 2018. The results of puretone audiometry test were as follows: Right Ear 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average 15 dB 50 dB 60 dB 70 dB 49 dB Left Ear 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average 10 dB 45 dB 55 dB 65 dB 44 dB The VA examiner determined that the Veteran’s speech discrimination score using the Maryland CNC word list was 86 percent in his right ear and 82 percent in his left ear. The examiner indicated that use of word recognition scores was appropriate for rating purposes. The Veteran reported that the functional impact of his hearing loss disability was that he could not hear people speaking softly or women’s voices. The Veteran had a VA examination in July 2019. The results of puretone audiometry test were as follows:   Right Ear 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average 20 dB 50 dB 60 dB 65 dB 49 dB Left Ear 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average 15 dB 50 dB 55 dB 70 dB 48 dB The VA examiner determined that the Veteran’s speech discrimination score using the Maryland CNC word list was 78 percent in his right ear and 82 percent in his left ear. The examiner indicated that use of word recognition scores was appropriate for rating purposes. The Veteran reported that the functional impact of his hearing loss disability was that he could not understand women’s voices. The Veteran testified at a Board hearing in July 2019. He indicated that he does not hear his cell phone ringing, and could not hear women’s voices. The Veteran testified that he has a hard time understanding people when not looking at their mouths. He also testified that he had difficulty hearing television or radio, and that he is “lost” without his hearing aids. The Veteran’s wife testified that she has to yell at the Veteran for him to be able to hear her speak, and that he has difficulty hearing with background noise, such as at a restaurant. Based on the evidence above, the Board finds that a compensable disability rating for bilateral hearing loss is not warranted at any point during the appellate period. Specifically, applying Table VI to the Veteran’s October 2009 VA examination results, the Veteran had Level I hearing in the right ear and Level II hearing in the left ear. Thus, relying on this audiometric testing, a noncompensable rating would be warranted. See 38 C.F.R. § 4.85, Table VII. Similarly, based on the Veteran’s May 2014 results, the Veteran had Level I hearing in the left ear and Level II hearing in the right ear. At this time, a noncompensable rating is warranted. In June 2018, the Veteran had Level II hearing in the right ear and Level III hearing in the left ear. Applying Table VII to these results, a noncompensable rating is assigned. Finally, in July 2019, the Veteran had Level III hearing in each ear, which warrants a noncompensable rating. The Board acknowledges the Veteran’s and his wife’s statements that the Veteran has difficulty hearing, especially in loud environments. This lay evidence is competent and credible. However, even after considering the functional impact of this disability, the objective evidence shows that a compensable rating for bilateral hearing loss is not warranted at any time over the approximately ten-year period during which the Veteran’s hearing was evaluated by VA and certainly during the course of the appeal period in this case. Notably, the United States Court of Appeals for Veterans Claims in Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007) and Doucette v. Shulkin, 28 Vet. App. 366 (2017), has held that the Veteran's inability to hear or understand speech or to hear other sounds in various contexts is 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 and the Board gives all the VA examinations of record significant weight, as they directly address all the rating criteria. A higher (compensable) rating for bilateral hearing loss is simply not warranted here. The Board also acknowledges that the record contains VAMC records showing word recognition scores. However, these records are not sufficient for rating purposes, as they do not specifically use Maryland CNC, and do not show puretone audiometry results. 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 a respiratory disability, to include asbestosis, reactive airway disease, asthma, and chronic obstructive pulmonary disease, is remanded. The Veteran underwent a VA examinations in October 2009 and November 2009. The examiners concluded that the Veteran did not have a diagnosis of asbestosis. The Veteran was afforded another VA examination for respiratory disabilities in June 2018. He was diagnosed with asthma and COPD, and was not diagnosed with asbestosis. The examiner opined that the Veteran’s diagnoses were not caused by or incurred during active duty service, and explained why asbestosis was a misdiagnosis. Unfortunately, the examinations of record failed to discuss relevant evidence and did not address the Veteran’s theory necessitating a remand . First, the June 2018 examiner did not provide an opinion or rationale regarding whether the Veteran’s military service aggravated his preexisting asthma. Second, no VA examination directly addresses the Veteran’s contention of asbestos exposure, or any of the possible military exposures he had, nor do they discuss all of the Veteran’s diagnoses. Even if the Veteran does not have asbestosis, an examiner must address whether exposure to asbestos is related to the etiology of any of his diagnoses, including emphysema, COPD, asthma, and reactive airway disease. The Veteran submitted a list of possible exposures or causes for his respiratory problems in June 2010, which, in addition to asbestos, includes building materials, vehicle exhaust, dust, and burning trash. The Veteran testified in July 2019 that he had no post-service asbestos exposure. 2. Entitlement to a rating in excess of 10 percent for residuals of an infection of the right long finger is remanded. The Veteran’s residuals of an infection of the right long finger is presently rated under Diagnostic Code (DC) 5229 for limitation of movement or range of motion. However, the record reflects other potential symptoms that may not be contemplated by DC 5229. For example, in June 2010, the Veteran testified that he had pins, needles, numbness, and discoloration in his finger. A May 2014 VA examiner diagnosed the Veteran with Reynaud’s, but did not indicate whether it was a residual of the finger infection. As it is unclear from the VA examinations which symptoms occurring in the Veteran’s right hand are residuals of an infection, and which ones might be attributable to another non-service-connected hand or finger disability, a remand is necessary for a medical expert to opine as to the etiology of any pins, needles, numbness, discoloration, and Reynaud’s, and specifically whether those symptoms and the diagnosis is a residual of infection, or is related to another hand or finger disability. Additionally, the Veteran underwent a VA examination for his finger in June 2018, which documented no flare-ups. The Veteran testified in July 2019 that he does experience flare-ups of his finger. Moreover, the Veteran testified that his finger is worse than at the last VA examination. As the record indicates a potential worsening of the Veteran’s disability, a new examination is warranted to assess the present severity of the Veteran’s right long finger disability. Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examination to determine the nature and etiology of the Veteran’s respiratory disability, to include emphysema, COPD, asthma, reactive airway disease, and asbestosis. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s respiratory disability, to include emphysema, COPD, asthma, reactive airway disease, and asbestosis, is related to, incurred in, or caused by the Veteran’s active service, including exposure to asbestos, building materials, vehicle exhaust, dust, and burning trash. (b.) The examiner must indicate whether the Veteran’s asthma, which, clearly and unmistakably (undebatably) existed prior to service, clearly and unmistakably underwent no increase in severity beyond the natural progression of the disease as a result of active duty service, including exposure to asbestos, building materials, vehicle exhaust, dust, and burning trash. 2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected residuals of an infection of the right long finger. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (a.) The examiner should discuss whether any symptoms the Veteran experiences are residuals of an infection of the right long finger, or if they are distinguishable from any symptoms caused by any other disability of the right hand or right long finger. Specifically, the examiner should address whether the Veteran’s Reynaud’s, pins, needles, numbness, and discoloration are residuals of an infection of the right long finger. (Continued on the next page)   The examiner(s) must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If the opinion cannot be made without resort to speculation, the examiner must so state and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 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.