Citation Nr: 20042382 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 14-40 157 DATE: June 23, 2020 ORDER Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for a pulmonary disability, to include as due to service in Southwest Asia, is remanded. Entitlement to service connection for sleep apnea, to include as due to service-connected disabilities, is remanded. FINDING OF FACT During the entire period on appeal the Veteran’s bilateral hearing loss disability has been manifested by not worse than Level II hearing in the right ear and Level IV hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.85, 4.86, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1980 to March 1995 with service in Southwest Asia. The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge in July 2017. A transcript of the hearing has been associated with the claims file. Previously, the claims were before the Board in April 2018, and were remanded for additional development. As discussed below, in part, the Board’s prior remand instructions have not been substantially complied with, as to the Veteran’s service connection claims and as such the case is again before the Board and additional development is warranted as to the service connection claims. See Stegall v. West, 11 Vet. App. 268, 271(1998). During the course of the appeal service connection was granted for posttraumatic stress disorder (PTSD) in a March 2020 rating decision effective May 23, 2012. As such results in a full grant of benefits sought on appeal, this issue is no longer before the Board. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings will be considered and discussed, if warranted. The Veteran’s service connected bilateral sensorineural hearing loss is rated as noncompensable pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Under the rating criteria, the method for rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that an increased compensable rating is warranted for his service connected bilateral hearing loss disability. The Veteran contends that his hearing loss has worsened and resulted in increased difficulty hearing, especially in situations where there is background noise, and regular use of his hearing aids. The Veteran is competent to testify to such lay observable symptomatology, and there is no evidence that these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his bilateral hearing loss during the period on appeal. The question for the Board is whether the Veteran’s bilateral hearing loss warrants a compensable rating based on the applicable Diagnostic Code. The Board finds that based on the evidence of record, the preponderance of the evidence is against finding that an increased compensable rating is warranted during the appeal. The Veteran was afforded a VA examination in June 2011. The examiner noted moderately severe sensorineural hearing loss bilaterally. The Veteran reported difficulty hearing and understanding his family while watching TV and in situations with background noise. The Veteran has reported difficulty hearing since his in-service noise exposure. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 35 50 55 44 94 LEFT 30 30 65 65 48 100 Speech audiometry revelated speech recognition ability of 94 percent in the right ear and 100 percent in the left ear. Using Table VI, the Veteran’s examination results revealed Level I hearing in the right ear and Level I hearing in the left ear. Based on Table VII, combing the levels for the right and left ear hearing results in a noncompensable rating for the Veteran’s bilateral hearing loss. The examiner noted that the Veteran’s hearing loss impacts occupational activities in that in his usual activities he has difficulty hearing with background noise and regularly uses his hearing aids. The Board finds this examination is entitled to probative weight. In addition, the Veteran was afforded a VA examination in October 2019. The examiner noted bilateral sensorineural hearing loss. The Veteran reported regular use of his hearing aids, and difficulty hearing without his hearing aids. The examiner noted a significant progression of the Veteran’s hearing loss has occurred bilaterality above 2000 Hertz (Hz) since the Veteran’s prior VA examination. On the authorized audiological evaluation in October 2019, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 45 65 75 56 84 LEFT 40 40 80 85 61 82 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 82 percent in the left ear. Using Table VI, the Veteran’s examination results revealed Level II hearing in the right ear and Level IV hearing in the left ear. Based on Table VII, combing the levels for the right and left ear hearing results in a noncompensable rating for the Veteran’s bilateral hearing loss. The examiner noted that the Veteran’s hearing loss impacts occupational activities in that in his usual activities the Veteran reports difficulty hearing in particular during conversations. The Board finds that this examination is entitled to probative weight. While the Board has considered the Veteran’s lay statements of record regarding his ongoing difficulty hearing and communicating and a worsening of his hearing loss the Board gives more probative weight to the competent medical evidence. During the July 2017 Board hearing, the Veteran testified that he had difficulty hearing his wife in conversation and was using hearing aids. The Veteran is competent to relay his current symptoms and these statements are credible. However, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. The VA examinations at worse using Table VI, noted Level II hearing in the right ear and Level IV hearing in the left ear, combing these levels according to Table VII, results in a noncompensable rating. The VA examinations and VA treatment records do not demonstrate an exceptional pattern of hearing as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz, or a pure tone threshold of 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz. The Board finds no basis to alternatively rate this claim under Table VIA. As such a compensable rating is not warranted for this period. 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. Relevant to VA audiological examinations, 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 VA examiners in June 2011 and October 2019 noted functional effects on the Veteran’s ordinary conditions of daily life in that the Veteran’s hearing loss results in difficulty hearing in social situations, difficulty hearing his family, hearing in situations with background noise and the regular use of his hearing aids. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Board has carefully considered the Veteran’s and his representative’s contentions that his hearing loss impacts his activities of daily living. Further, the Board notes the Veteran’s general contentions that the current rating criteria do not reflect the impact his hearing loss has on his activities of daily living. However, it must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by an application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board considers the subjective reports of hearing difficulty but places great weight on the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding a compensable rating for the Veteran’s service connected bilateral hearing loss disability is warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for a pulmonary disability, to include as due to service in Southwest Asia 2. Entitlement to service connection for sleep apnea, to include as due to service-connected disabilities The Veteran contends that service connection is warranted for a pulmonary disability and for sleep apnea, to include as due to a service-connected disability. The Board finds that a remand is warranted for additional development. In April 2018, the Board remanded the case and the regional office (RO) was directed to obtain outstanding treatment records and afford the Veteran VA examinations. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court has held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. Although on remand the RO obtained outstanding VA treatment records and VA examinations, the RO did not substantially comply with the remand directives because the Veteran identified outstanding Social Security Administration (SSA) records. Fully, the VA examination as to the Veteran’s claim for sleep apnea failed to fully address the Veteran’s lay contentions and secondary service connection. See Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 307. First, relevant to both the service connection claims on appeal, in October 2019 treatment records the Veteran reported that he is in receipt of SSA disability benefits. As such indicates that there may be outstanding and relevant SSA records, a remand is required to allow VA to request these records. Next, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for sleep apnea, to include as due to a service-connected disability because no VA examiner has fully opined as to secondary service connection, and the Veteran’s PTSD. The October 2019 VA examination failed to address the Veteran’s now service connected PTSD. Further, the Veteran’s and the associated lay statements regarding ongoing symptomology that began in-service should be fully addressed. As such a remand is warranted for a supplemental VA opinion to fully address secondary service connection including aggravation as to the Veteran’s service-connected PTSD. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s sleep apnea. The examiner must opine whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea was caused by an in-service, event, injury or disease, including in-service symptoms of snoring and difficulty breathing? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea was caused by his service-connected PTSD including the theory that PTSD caused weight gain that caused the sleep apnea? (c.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea was aggravated (permanently worsened beyond its natural progression) by his service-connected PTSD including the theory that PTSD caused weight gain that caused the sleep apnea? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the VA examination in October 2019 noting that it is less likely than not that the Veteran’s sleep apnea was incurred in or caused by an in-service injury, event or illness. As to secondary service connection the examiner addressed the Veteran’s service-connected ankle disability and found that there is no known association between an ankle injury and the development of obesity. During the course of the appeal service connection for PTSD was granted. The examiner should fully address whether the Veteran’s sleep apnea is proximately due to or aggravated by obesity and whether it is at least as likely as not that his obesity is proximately due to his service-connected PTSD. In addition, attention is invited to the Veteran’s lay statements and July 2017 hearing testimony noting that his PTSD and depression resulted in weight gain post-service and that his service-connected PTSD has aggravated his sleep apnea. The Veteran contends that his depression and PTSD resulted in his weight gain which lead to his diagnosis of sleep apnea. Further, the Veteran and lay statements and testimony note that his symptoms of snoring loudly and stopping breathing while asleep began in 1992/1993 during service. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kardian, 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.