Citation Nr: 20009640 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 16-44 441 DATE: February 5, 2020 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a cardiovascular disorder, characterized as coronary artery disease (CAD) and congestive heart failure (CHF), to include as secondary to the service-connected chronic obstructive pulmonary disease (COPD) with asbestosis. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss has been manifested by hearing acuity of no worse than Level II in his right ear and Level I in his left ear. An exceptional hearing loss pattern has not been shown in either ear. CONCLUSION OF LAW The criteria for an initial compensable rating for the service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1955 to August 1964. The current matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in March 2016 from a Regional Office (RO) of the Department of Veterans Affairs (VA). Initial Compensable Rating—Bilateral Hearing Loss Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenman v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes auditory hearing acuity levels based on average pure tone thresholds and speech discrimination. 38 C.F.R. § 4.85. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate 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. Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies of 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. When the pure tone 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 for hearing impairment from Table VI or Table VIa, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. In March 2018, the Board remanded this issue for an audiological examination to determine the current severity of the Veteran’s hearing disability. A new examination, which was conducted in April 2019, shows the following audiological results: HERTZ 1000 2000 3000 4000 RIGHT 25 35 55 50 LEFT 25 40 55 55 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 92 in the left ear. Analyzing the results of the April 2019 audiological evaluation, with mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results, the Veteran’s average hearing loss of 41 decibels in the right ear, 44 decibels of hearing loss in the left ear, together with hearing discrimination scores of 84 percent in the right ear and 92 percent in the left ear, results in Level II impairment in the right ear and Level I in the left ear under Table VI. A Level II impairment in the right ear combined with Level I impairment in the left ear is not a compensable hearing loss. These audiological results do not show an exceptional hearing loss pattern in either ear. In this regard, the Board reiterates that this issue was remanded in March 2018 to accord the Veteran a new VA audiological examination, in light of his assertions that his hearing loss disability had increased in severity since his last VA audiological evaluation in January 2016. In this current adjudication of the Veteran’s appeal, the Board has also considered the results of this prior audiological examination, which showed hearing acuity of Level I in each ear, with speech discrimination scores of 100 percent correct in the Veteran’s right ear and 96 percent correct in his left ear—which corresponds to a noncompensable level of hearing acuity bilaterally. In addition, these audiological results do not reflect an exceptional hearing loss pattern in either ear. While those earlier results show, in comparison to the recent 2019 audiological results, a worsening of the Veteran’s bilateral hearing acuity, the Board reiterates that neither examination demonstrates a compensable level of hearing loss disability in either ear. The Board is sympathetic to the Veteran’s belief that a compensable rating is warranted for his service-connected bilateral hearing loss. However, the audiometric examination results, when compared to the rating criteria, do not warrant a compensable rating at any time during the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for bilateral hearing loss. Accordingly, this claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran contends that his diagnosed CAD and CHF were caused or aggravated by his service-connected COPD with asbestosis. Additionally, the Veteran’s representative has submitted medical treatises that show impaired respiratory functioning significantly impacts cardiovascular functioning. This matter was remanded by the Board in March 2018 to accord the Veteran a VA examination in which the examiner was asked to opine about possible aggravation of the Veteran’s CAD and CHF by his service-connected COPD with asbestosis. A new VA examination was conducted in April 2019. This examination is inadequate, however, as the examiner’s rationale in denying aggravation only states that the Veteran’s condition was stable. While the current severity of symptoms and treatment is relevant, those factors do not address if the service-connected asbestosis played any part in aggravating the Veteran’s CAD or CHF. Additionally, the opinion does not address the Veteran’s medical treatises as directed by the prior Board remand. The Board errs when it fails to ensure substantial compliance with a Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Accordingly, the April 2019 VA examination is inadequate for the purpose of adjudicating the claim for service connection for CAD and CHF, to include as secondary to service-connected asbestosis. A remand for corrective action is necessary. This matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his cardiovascular disorder, to include CAD and CHF. The examiner must review the claims file. Any necessary studies or tests should be conducted. After review of the record as well as an interview with and examination of the Veteran, the examiner is asked to: (a.) Opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s CAD and/or CHF was(were) incurred in, or otherwise caused by, his active duty. In answering this question, the examiner should address the June 1964 service treatment record that shows a heart murmur. (b.) Opine as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran’s CAD and CHF were either caused, or aggravated (made worse), by the Veteran’s service-connected COPD with asbestosis. If so, the examiner should identify the degree of impairment that is due to such aggravation by the asbestosis. In rendering this opinion, the examiner is asked to address the January 2018 statement whereby the Veteran’s representative referenced medical treatises showing that impaired respiratory functioning significantly impacts cardiovascular functioning. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, or to report for a scheduled VA examination, may impact the decision made. 38C.F.R. § 3.655 (2017). He has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law (CONTINUED ON NEXT PAGE) requires that all remands by the Board or the United States Court of Appeals for Veterans Claims be handled in an expeditious manner. 38U.S.C.A. §§ 5109B, 7112 (West 2014). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edward G. Lent 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.