Citation Nr: 20021094 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-19 457A DATE: March 24, 2020 ORDER Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a kidney disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for rheumatoid arthritis is remanded. FINDING OF FACT The service-connected bilateral hearing loss has been manifested by no more than Level II hearing acuity in the right ear and Level III hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1967 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO), in New Orleans, Louisiana. In May 2019, the Veteran testified at a video conference hearing over which the undersigned presided. A transcript of the hearing is of record. This matter was previously before the Board in November 2019 at which time it was remanded for additional development. It is now returned to the Board. 1. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests (Maryland CNC) together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85 (a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular ratings are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), or hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b). Where there is an exceptional pattern of hearing loss of 55 decibels or more in each of the four specified frequencies, 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 Board further notes the United States Court of Appeals for Veterans Claims (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). The Veteran asserts that his bilateral hearing loss is more severe than reflected by the currently assigned noncompensable disability rating. Specifically, he describes difficulty understanding conversation such that he has had to wear hearing aids in each ear. A VA examination report dated in February 2016 shows that the Veteran reported difficulty with hearing ever since his period of active service. Audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 30 40 33 LEFT 35 60 55 45 49 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear. The diagnosis was sensorineural hearing loss in each ear. The functional impact of the Veteran’s hearing loss on ordinary conditions of daily life was described by the Veteran as difficulty talking to people. Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level II in the right ear and Level III in the left ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86 (a) or 38 C.F.R. § 4.86 (b); as such, those provisions are inapplicable. Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating. A VA examination report dated in December 2019 shows that audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 35 40 38 LEFT 30 60 55 50 49 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 86 percent in the left ear. The diagnosis was sensorineural hearing loss in each ear. It was indicated that there was no functional impact of the Veteran’s hearing loss on ordinary conditions of daily life. Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level II in the right ear and Level II in the left ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86 (a) or 38 C.F.R. § 4.86 (b); as such, those provisions are inapplicable. Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating. After carefully reviewing the evidence of record, the preponderance of the evidence is against the assignment of a compensable disability rating for the service-connected bilateral hearing loss disability. The evidence of record does not more nearly reflect the criteria for a compensable disability rating. 38 C.F.R. § 4.7. Both VA examination reports specifically addressed the functional limitations caused by the Veteran’s hearing loss, indicating that there were either no effects on the usual activities of daily living, or manifested by difficulty hearing which is contemplated by the disability rating criteria. To the extent that the Veteran reports that his acuity is worse than rated, this evidence is both competent and credible in regard to reporting his inability to hear well. However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; and, he is competent to report a worsening in hearing acuity; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems. In other words, even if the Veteran feels that his hearing is worse than previously, the degree of loss does not rise to the level that warrants a compensable rating based on the rating schedule. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. Accordingly, the claim for an initial compensable disability rating for the bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine to the extent noted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension. The Veteran, in pertinent part, has asserted that his hypertension was due to stress. In November 2019, the Board remanded this issue so that an opinion could be provided as to whether the Veteran’s current hypertension was secondary to his service-connected PTSD with major depressive disorder. In a VA examination report dated in December 2019, the VA examiner opined that the Veteran’s blood pressure was documented as normal in his service treatment records, and there is no evidence to suggest that the hypertension was related to military service. The examiner added, “Therefore, the veteran’s diagnosis of hypertension is less likely as not incurred in or caused by the hypertension to include as caused by the hypertension to include as secondary to a service-connected disability during the service.” This opinion is inadequate. The examiner did not address whether the hypertension was either (a) caused by or (b) aggravated by the service-connected PTSD with major depressive disorder. A remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence is essential for a proper appellate decision”). If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Thus, a remand is necessary to obtain an addendum medical opinion. 2. Entitlement to service connection for a kidney disability. In the November 2019 Board remand, it was indicated that March 2018 VA outpatient treatment records had shown that chronic kidney disease, stage 2, was due to hypertension. As the issue of service connection for hypertension was deemed inextricably intertwined, the kidney disability was held in abeyance pending the completion of the remand directives regarding the hypertension issue. See Harris v. Derwinski, 1 Vet. App. at 183 (1990) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As that issue is, once again, being remanded herein, a decision on this issue of service connection for a kidney disability must be deferred pending the outcome of the other claim. 3. Entitlement to service connection for rheumatoid arthritis. In the November 2019 Board remand, it was indicated that during the May 2019 Board hearing, the Veteran had asserted that his diagnosed rheumatoid arthritis was manifested as a result of herbicide exposure during his period of active service. As the Veteran’s exposure to certain herbicides during his period of active service has been conceded by VA, the Board, in pertinent part, directed that an opinion be provided as to whether the rheumatoid arthritis was at least as likely as not related to in-service herbicide agent exposure. In a VA examination report dated in January 2020, the VA examiner opined that the Veteran’s rheumatoid arthritis was less likely than not related to active service. The examiner explained that the Veteran did not have any evidence of rheumatoid arthritis until many years after his active service, and that his service treatment records did not show treatment or other evidence of any type of arthritis. The Board finds that this opinion is inadequate as the examiner did not address whether the rheumatoid arthritis was etiologically related in in-service herbicide agent exposure. A remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 311. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Thus, a remand is necessary to obtain an addendum to the January 2020 VA medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not secondary to a service-connected disability, to specifically include the PTSD with major depressive disorder. In this regard, the examiner is directed to answer the following questions as definitively as possible: (a) Is it at least as likely as not that the Veteran’s diagnosed hypertension was caused (in whole or in part) by a service-connected disability, to specifically include the service-connected PTSD with major depressive disorder, to include medication taken to treat that disability? (b) Is it at least as likely as not that the Veteran’s diagnosed hypertension is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include the service-connected PTSD with major depressive disorder, to include medication to treat that disability? If the Veteran’s current hypertension is aggravated by a service-connected disability, to the extent possible, the examiner should also indicate the degree of such aggravation by identifying a baseline level of disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for hypertension in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. If it is opined that the Veteran’s hypertension is caused or aggravated by a service-connected disability, please opine as to any relationship between the hypertension and the Veteran’s kidney disorder. 2. Obtain an addendum opinion from an appropriate clinician as to whether it is at least as likely as not that the Veteran’s diagnosed rheumatoid arthritis is related to in-service herbicide agent exposure. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for rheumatoid arthritis in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, 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.