Citation Nr: 20022599 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 13-32 264 DATE: April 1, 2020 ORDER Entitlement to an initial compensable disability rating for right ear hearing loss prior to July 8, 2016 is denied. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss from July 8, 2016 to January 2, 2020 is denied. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss from January 3, 2020 is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for bilateral chorioretinal scars is remanded. FINDINGS OF FACT 1. For the period prior to July 2016, the Veteran’s right ear hearing loss was manifested by hearing acuity of no worse than Level VII. 2. During the period from July 8, 2016, to January 2, 2020, the Veteran’s bilateral hearing loss was manifested by hearing acuity of no worse than Level X in the right ear and Level II in the left ear. 3. For the period from January 3, 2020, the Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level XI in the right ear and Level IV in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating for right ear hearing loss prior to July 8, 2016 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. 2. The criteria for entitlement to a disability rating in excess of 10 percent for bilateral hearing loss from July 8, 2016 to January 2, 2020 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. 3. The criteria for entitlement to a disability rating in excess of 30 percent for bilateral hearing loss from January 3, 2020 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 FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Navy from January 1962 to October 1982. He received the Vietnam Service Medal, among other decorations and awards. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in April 2012 and November 2016 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Among other things, the April 2012 rating decision granted service connection for right ear hearing loss and denied service connection for left ear hearing loss. In an April 2012 notice of disagreement (NOD), the Veteran appealed the noncompensable rating assigned to his right ear hearing loss and the denial of service connection for left ear hearing loss. The RO denied the issues on appeal in a September 2013 Statement of the Case (SOC). In response, the Veteran submitted a VA Form 9 in October 2013 in which he specifically limited his appeal to include the issue of the disability rating assigned to his right ear hearing loss, but not the issue of entitlement to service connection for left ear hearing loss. Therefore, the denial of the claim of entitlement to service connection for left ear hearing loss became final. In July 2016, the Veteran submitted a new claim for entitlement to service connection for left ear hearing loss. In the November 2016 rating decision, the RO granted entitlement to service connection for left ear hearing loss and assigned a 10 percent disability rating for bilateral hearing loss effective July 2016, the date of the new claim for left ear hearing loss. The issues on appeal have been characterized accordingly. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing has been associated with the claims file. This case was most recently before the Board in January 2018, at which time it was remanded for additional development. The case has since been returned to the Board for appellate review. Entitlement to increased ratings for hearing loss Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Determinations will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § § 1154 (a); 38 C.F.R. § 3.303 (a). Nevertheless, while the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that it discuss, in exhaustive detail, each and every piece of evidence submitted or that VA has obtained on the appellant’s behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each and every piece of evidence). Rather, the Board’s analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the Veteran’s claims. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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 designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). 1. Entitlement to an increased disability rating for right ear hearing loss prior to July 8, 2016 The Veteran seeks a higher rating for his service-connected right ear hearing loss prior to July 8, 2016. The Veteran was afforded a VA examination in July 2011. The authorized audiological evaluation showed that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 60 95 105 78.75 80 LEFT 25 20 40 65 37.5 80 Prior to July 8, 2016, the Veteran was service connected only for right ear hearing loss. Accordingly, to determine the percentage evaluation from Table VII, the non-service-connected left ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). Applying the results of the July 2011 VA audiological examination to Table VI, the findings yield numeric designations of Level V in the right ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. However, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the right ear. Applying the results to Table VIa yields Level VII in the right ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. Therefore, Table VIa yields the same rating. In support of his claim, the Veteran submitted reports from private audiological examinations administered in October 2010, June 2012, and December 2015. Neither the October 2010 nor the December 2015 examination reports indicate whether speech recognition was determined using the Maryland CNC speech discrimination test, as required by 38 C.F.R. § 4.85. Therefore, both reports are inadequate for rating purposes. The June 2012 private audiological examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hz as 55, 60, 85, and 100, respectively. Speech recognition testing using the Maryland CNC speech discrimination yielded results of 88 percent in each ear. None of the examination reports suggest that a higher rating is warranted for right ear hearing loss prior to July 8, 2016. Overall, the Board finds that the weight of the evidence does not support assigning a compensable disability rating for right ear hearing loss prior to July 8, 2016. The Board reiterates that disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Here, the evidence shows that the Veteran’s right ear hearing acuity was no worse than Level VII during the period prior to July 8, 2016, which equates to a noncompensable disability rating. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss from July 8, 2016 to January 2, 2020 The Veteran was afforded another VA audiological examination in October 2016. The authorized audiological evaluation showed that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 90 90 100 110 97.5 72 LEFT 40 50 60 70 55 84 Applying the results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. However, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the right ear. Applying the results to Table VIa yields Level X in the right ear. Entering the resulting bilateral numeric designation of Level X for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. Therefore, Table VI and VIa yield the same rating. The Veteran also underwent a private audiological examination in October 2016. The examiner did not provide numerical results, and it is not clear whether the Maryland CNC speech discrimination test was used. However, the available charts do not suggest a higher rating is warranted for the period. The Veteran underwent another private audiological examination in April 2017, which revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hz as 80, 80, 90, and 110, respectively. Left ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hz were 45, 55, 65, and 70, respectively. Word recognition scores were 28 percent in the right ear and 76 percent in the left ear. However, the word recognition scores were derived using the NU-6 word recognition test and not the Maryland CNC speech discrimination test, as required by 38 C.F.R. § 4.85. Therefore, unfortunately, the private examination report is inadequate for rating purposes. During his May 2017 Board hearing, the Veteran testified that his hearing loss impacted his business by making it difficult for him to speak to and understand customers. He also reported having to turn up the volume on the television so loud that he could not hear his wife. August 2019 private medical treatment records show the Veteran had chronic middle ear disease and right-sided tympanic membrane perforation. He was found to have profound central hearing loss in the left ear and profound mixed loss in the right, with thresholds of 70 decibels in both ears. Overall, the Board finds that the weight of the evidence does not support assigning a disability rating in excess of 10 percent for bilateral hearing loss during the period from July 8, 2016 to January 2, 2020. As previously mentioned, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. at 345. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Here, the evidence shows that the Veteran’s right ear hearing acuity was no worse than Level VII, and his left ear hearing acuity was no worse than Level II during the period prior, which equates to a 10 percent disability rating. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. 3. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss from January 3, 2020 Pursuant to the Board’s January 2018 remand instructions, the Veteran was afforded a VA examination in January 2020. The Veteran reported that often he will hear but cannot understand, that he shut his business down due to his hearing loss, and that his wife must raise her voice with him. The authorized audiological evaluation showed that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 105 90 100 105+ 100 28 LEFT 40 60 70 70 60 80 Applying the results to Table VI, the findings yield a numeric designation of Level XI in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level XI for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. However, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the right ear. Applying the results to Table VIa yields Level X in the right ear. Entering the resulting bilateral numeric designation of Level X for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. Therefore, Table VI and VIa yield the same rating. Overall, the Board finds that the weight of the evidence does not support assigning a disability rating in excess of 30 percent for bilateral hearing loss from January 3, 2020. As previously mentioned, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. at 345. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Here, the evidence shows that the Veteran’s right ear hearing acuity was no worse than Level XI, and his left ear hearing acuity was no worse than Level IV during the period prior, which equates to a 30 percent disability rating. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Although the Board regrets the delay, the Veteran’s claim of entitlement to an increased rating for bilateral chorioretinal scars must be remanded for a new VA examination, as the most recent VA examination report did not adequately evaluate the Veteran’s reported visual field defects. During a July 2011 VA eye examination, the examiner documented a decrease in the Veteran’s central vision and found that he had inferior metamorphopsia (distorted vision) in the right eye. In VA treatment records, the Veteran complained of losing more of his field of vision in the right eye, such that he could only see about a quarter of is visual field. During his May 2017 Board hearing, the Veteran testified that his eye disability causes interference with his field of vision. The Veteran was most recently afforded a VA eye examination in January 2020. The examiner indicated that the Veteran did not have a documented visual field defect. However, there is no indication the examiner performed visual field testing, despite the previously documented visual field defect, and the Veteran’s reports of increasing loss of visual field. Therefore, remand is warranted to afford the Veteran another VA eye examination that includes visual field testing. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records, including records from January 2020 to the present. 2. Then, schedule the Veteran for a VA eye examination to determine the current severity of his service-connected bilateral chorioretinal scars. The examination must be completed by a licensed optometrist or ophthalmologist. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, including visual field testing, and the results reported. In this regard, the Board notes that the Veteran has reported visual field loss, and a previous VA examination report documented decreased central vision. The examiner should specifically identify the disease, injury, or other pathologic process responsible for any visual impairment found, including any visual field loss, and describe in detail all pertinent symptomatology and findings. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The examiner should consider all applicable rating criteria during the appeal period (including the versions of the eye rating criteria effective prior to and effective from May 13, 2018). The examiner is advised that the Veteran is competent to report symptoms, and his reports must be considered. A clear rationale for any opinions expressed would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Then, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative and return the case to the Board. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.