Citation Nr: 21001386 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-44 035A DATE: January 7, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to an initial disability rating in excess of 50 percent, prior to December 9, 2013, and in excess of 70 percent, thereafter, excluding periods of temporary total ratings, for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) is remanded. Entitlement to an initial compensable disability rating, prior to May 18, 2018, and in excess of 20 percent thereafter, for left foot pes planus is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss has been manifested by no more than a hearing acuity of Level I for the right ear and Level II for the left ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from January 2005 to October 2011, to include service in the Southwest Asia (SWA) Theater of operations during the Persian Gulf War. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated November 2011 and February 2012 of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. In December 2017 and November 2019, the Board, in pertinent part, remanded the issues on appeal for further development. The issues have returned to the Board. By way of history, in a September 2013 rating decision, the RO increased the disability rating for the Veteran’s service-connected PTSD with TBI to 50 percent, effective October 22, 2011. Then, in a November 2014 rating decision, the RO increased the disability rating for his service-connected PTSD with TBI to 70 percent, effective December 9, 2013. Additionally, in an August 2019 rating decision, the RO increased the disability rating for his service-connected left foot pes planus from noncompensable to 20 percent, effective May 18, 2018. Then, with further regard to the service-connected PTSD with TBI, in a September 2020 rating decision, the RO granted a temporary total evaluation from August 21, 2017, and continued the 70 percent rating from December 1, 2017. As these awards did not represent a total grant of benefits sought on appeal, the claims for increase of the service-connected PTSD with TBI and left foot pes planus remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Thus, these issues have been restated accordingly on the title page. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that “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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. The Veteran seeks entitlement to an increased rating for his bilateral hearing loss. The Veteran’s hearing loss has been evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100. This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85, and there is no room for subjective interpretation. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, and as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second, or hertz (Hz). The rating criteria for hearing loss establish 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. The rows in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the row appropriate for the percentage of discrimination and the column appropriate to the pure tone decibel loss. The percentage disability evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the row appropriate for the numeric designation for the ear having the better hearing acuity and the column appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. 38 C.F.R. §§ 4.85(b), 4.87. In addition, under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies, 1000, 2000, 3000, and 4000 Hz, 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. Under 38 C.F.R. § 4.86(b), when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. The Veteran contends that he is entitled to an increased rating for his service-connected bilateral hearing loss. In February 2011, the Veteran was afforded a VA examination for hearing loss. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 5 50 60 LEFT 10 15 65 75 The pure tone threshold average was 33 decibels in the right ear and 41 decibels in the left. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. It is necessary to apply the criteria found in 38 C.F.R. § 4.85 at Table VI to the Veteran’s audiological examination. In so doing, the Veteran’s results from the February 2011 VA examination yield a numerical designation of I for each ear. Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation, providing evidence against his claim for a higher rating. Additionally, the Veteran’s test results do not indicate an exceptional pattern of hearing loss. The February 2011 examination does not show that the pure tone threshold at each of the frequencies of 1000, 2000, 3000, and 4000 Hz was 55 decibels or more. Furthermore, the examination results do not show pure tone thresholds at 30 or less at 1000 Hz and 70 or more at 2000 Hz. See 38 C.F.R. § 4.86(a). In September 2020, the Veteran was afforded another VA examination for hearing loss. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 5 50 60 LEFT 5 15 60 75 The pure tone threshold average was 33 decibels in the right ear and 39 decibels in the left. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 88 percent in the left ear. It is necessary to apply the criteria found in 38 C.F.R. § 4.85 at Table VI to the Veteran’s audiological examination. In so doing, the Veteran’s results from the September 2020 VA examination yield a numerical designation of I for the right ear and II for the left ear. Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation, providing evidence against his claim for a higher rating. Additionally, the Veteran’s test results do not indicate an exceptional pattern of hearing loss. The September 2020 examination does not show that the pure tone threshold at each of the frequencies of 1000, 2000, 3000, and 4000 Hz was 55 decibels or more. Furthermore, the examination results do not show pure tone thresholds at 30 or less at 1000 Hz and 70 or more at 2000 Hz. See 38 C.F.R. § 4.86(a). Based on the foregoing, the Board finds that the Veteran’s current noncompensable rating for hearing loss is correct, and a higher disability rating, on a schedular basis, is not warranted for this period. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann, 3 Vet. App. 345. Here, the valid audiological evaluation of record indicates that a compensable rating is not warranted based upon the Veteran’s bilateral hearing loss disability. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to an initial disability rating in excess of 50 percent, prior to December 9, 2013, and in excess of 70 percent thereafter, excluding periods of temporary total ratings, for PTSD with TBI is remanded. As previously indicated, in a September 2020 rating decision, the RO granted a temporary total evaluation from August 21, 2017, and continued the 70 percent rating from December 1, 2017, for the Veteran’s service-connected PTSD with TBI. On the same day, the RO issued a supplemental statement of the case (SSOC) in which it denied entitlement to a higher disability rating of 50 percent prior to December 9, 2013, and a higher disability rating of 70 percent from December 1, 2017. The RO failed to address the proper issues pertaining to the service-connected PTSD with TBI. The RO should have also addressed the issue of entitlement to a disability rating in excess of 70 percent for the period from December 9, 2013, to the present, excluding the period of temporary total rating beginning on August 21, 2017. As the RO failed to readjudicate the proper issues as to entitlement to an increased rating for service-connected PTSD with TBI, the Veteran has not been afforded due process. See C.F.R. § 19.31. Therefore, to ensure compliance with applicable regulations and to afford due process to the Veteran, this matter must be remanded for a SSOC. 2. Entitlement to an initial compensable disability rating, prior to May 18, 2018, and in excess of 20 percent thereafter, for left foot pes planus is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the November 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran a VA foot examination to assess the current severity of his service-connected left foot pes planus, to include compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Furthermore, the Board noted that, while the May 2018 VA examiner noted that the Veteran was treated for a Charcot joint and Lisfranc joint foot injury during service, diagnostic testing had not been completed to determine whether the Veteran had a current diagnosis of a Charcot joint and Lisfranc joint foot injury. Thus, the Board instructed that the “examiner must address whether the Veteran has any additional left foot disorder, to include a Charcot joint or Lisfranc joint foot disorder, associated with his service-connected left foot disorder. In September 2020, the Veteran was afforded a VA foot examination. The examiner did not provide range of motion measurements of either foot in active motion, passive motion, weight-bearing, or non-weight-bearing. The examiner did not provide an explanation as to why such testing was unnecessary. Therefore, the examination did not comply with the requirements in Correia, 28 Vet. App. at 168. Furthermore, as directed by the Board in November 2019, the examiner should have provided a retrospective opinion considering Correia for prior VA examinations. The examiner did not provide a retrospective opinion addressing such, nor did the examiner provide an explanation as to why such an opinion could not be provided. Also, the examiner failed to address whether the Veteran had a current diagnosis of a Charcot joint or Lisfranc joint foot injury. Accordingly, to ensure compliance with the November 2019 remand directives and that the record reflects the current severity of the Veteran’s left foot disability, a remand is required for a VA foot examination. See Stegall, 11 Vet. App. at 271. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his left foot disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must address whether the Veteran has any additional left foot disorders, to include a Charcot joint or Lisfranc joint foot disorder, associated with his service-connected left foot disorder. The examiner should provide all information required for rating purposes, to specifically include range of motion of each foot in active motion, passive motion, weight-bearing, and non-weight-bearing. Further, the examiner must indicate if movement is limited by pain, and if so, at what point. The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts that he is unable to perform range of motion testing due to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran’s ordinary activity, including his ability to work. The examiner should also review the VA examinations containing range of motion findings pertinent to the Veteran’s left foot conducted during the course of the appeal. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran’s functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.