Citation Nr: 21001503 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-15 811 DATE: January 8, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to August 18, 2020 is denied. Entitlement to a rating in excess of 10 percent for bilateral hearing loss from August 18, 2020 is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDINGS OF FACT 1. Prior to August 18, 2020, the Veteran’s hearing impairment was no worse than Level II in the right ear and Level II in the left ear 2. From August 18, 2020, the Veteran’s hearing impairment was no worse than Level IV in the right ear and Level III in the left ear. CONCLUSIONS OF LAW 1. Prior to August 18, 2020, the criteria for a compensable rating for bilateral sensorineural hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100. 2. From August 18, 2020, the criteria for a rating in excess of 10 percent are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2015 and November 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded these matters in January 2020. Increased Rating Disability ratings assigned in accordance with VA's Schedule for Rating Disabilities are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. A "staged" rating will be assigned for diverse symptoms meeting the criteria for different ratings in distinct time periods. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Entitlement to a compensable rating prior to August 18, 2020, and to a rating in excess of 10 percent from August 18, 2020, for bilateral sensorineural hearing loss. In September 2016, the Veteran submitted a claim of entitlement to a compensable rating for bilateral hearing loss. The claim was denied in November 2016. The Veteran has perfected an appeal contesting the disability rating assigned. An October 2020 rating decision increased the evaluation of bilateral hearing loss from to 10 percent, effective August 18, 2020. Because the increase did not grant the maximum benefit sought, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). A staged rating is in effect. VA's Rating Schedule evaluates impairment of auditory acuity pursuant to 38 C.F.R. § 4.85. An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (e). When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or when the pure tone thresholds are 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. That numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86. The Veteran underwent a private audiological examination in March 2013. As the audiological examination does not include a controlled speech discrimination test (Maryland CNC test), it does not comply with the audiological examination requirements and the Board cannot consider it. 38 C.F.R. § 4.85. The Veteran underwent a VA audiological examination in November 2013. Functional impact of hearing loss reported by the Veteran was problems with background noise, crowds and understanding speech. The pure tone thresholds, in decibels, were: The speech discrimination score was 92 percent for the right ear and 92 percent for the left ear. The average of the pure tone thresholds (at 1000 Hertz through 4000 Hertz) for the right ear was 32.5 decibels, and for the left ear it was 33.75 decibels. Applying these readings to Table VI results in Level I for the right ear and Level I for the left ear. These levels of hearing loss equate to a noncompensable rating when applied to Table VII. The Veteran underwent a second VA audiological examination in November 2016. With regard to functional impact of hearing loss, the Veteran reported problems with hearing soft voices or women’s voices, he doesn’t hear well in noise and he has to turn the TV up loud. The pure tone thresholds, in decibels, were: The speech discrimination was 90 percent for the right ear and 86 percent for the left ear. The average of the pure tone thresholds (at 1000 Hertz through 4000 Hertz) for the right ear was 36.25 decibels, and for the left ear was 42.5 decibels. Applying these results to Table VI results in Level II for the right ear and Level II for the left ear. These levels of hearing loss equate to a noncompensable rating when applied to Table VII. The Veteran next underwent a VA audiological examination in August 2020. With regard to functional impact of hearing loss, the Veteran reported that he has worn hearing aids for 11 years. The examiner determined that the hearing loss did not have any impact on the ordinary conditions of daily life including the ability to work. The pure tone thresholds, in decibels, were: The speech discrimination score for the right ear was 82 percent and 84 percent for the left ear. The average of the pure tone thresholds (at 1000 Hertz through 4000 Hertz) for the right ear was 51.25 decibels, and for the left ear it was 58.75 decibels. Applying these results to Table VI results in Level IV for the right ear and Level III for the left ear. These levels of hearing loss equate to a 10-percent evaluation when applied to Table VII. No evidence suggests that the Veteran's hearing loss disability is more severe for compensation purposes than as demonstrated by the VA audiological examinations. When Tables VI, VII, and VIa are applied, as appropriate, the audiometric findings do not meet the criteria for a compensable rating prior to August 18, 2020, or to a rating in excess of 10 percent from August 18, 2020. There is no evidence of an exceptional pattern of hearing loss in either ear. The functional impact of the Veteran’s hearing loss on his daily life has been considered. However, the Veteran’s functional impairment due to hearing loss is a disability picture that is specifically and adequately contemplated by the current schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (finding that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA’s audiometric tests are designed to measure). For the foregoing reasons, the claim for an increased rating for hearing loss must be denied. In reaching this conclusion, the applicability of the benefit-of-the doubt doctrine has been considered; however, given the mechanical nature of deriving schedular ratings for hearing loss, and that the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to service connection for chronic obstructive pulmonary disease (COPD). The Veteran contends that his COPD is the result of his exposure to chemicals, gases, and asbestos during service. See December 2019 Board Hearing Transcript. The Board notes that this claim was remanded in January 2020 for additional development. Specifically, the Board requested a VA medical examination and opinion on the etiology of the Veteran’s respiratory disorders (e.g., COPD). See January 2020 Board Decision at 5. The examiner was directed to discuss the service treatment records (STRs) noting respiratory problems and the Veteran’s lay assertions. Id. In August 2020, a C&P Examination for the Veteran’s COPD was completed. The examiner opined that the Veteran’s COPD was not due to military service. The examiner’s rationale for the negative opinion relied heavily on the examiner’s finding that the Veteran’s service treatment records did not show evidence or notes of any respiratory problems during service. See August 2020 VA Examination at 3. The examiner further stated that the Veteran’s STRs did not show any clinic visits, treatments, or diagnoses related to respiratory problems. Id. at 4. As the Veteran’s lay assertions did not correlate with the STRs, the examiner rendered a negative service connection opinion. Id. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran’s STRs include notes of respiratory problems during service. In April 1968 there is a medical note of bronchitis. See January 2015 Medical Treatment Record – Government Facility. Additionally, on March 20, 1969, there is a treatment note that refers to the Veteran’s chest and states that the Veteran reported that he was having “trouble breathing.” Id. As these notations are related to the Veteran’s respiratory disorders and were not considered by the examiner in rendering his or her opinion, the Board finds the August 2020 opinion to be inadequate. Based on the examiner’s failure to consider and address the Veteran’s STRs noting respiratory problems, there was not substantial compliance with the Board’s remand instructions, so the Board must remand this matter for an addendum VA medical opinion that addresses all the evidence of record. Any etiology opinion must take into account the Veteran’s credible medical history. Therefore, a remand is necessary for an addendum opinion to discuss the nature and etiology of the Veteran’s respiratory disorders (e.g., COPD). The matter is REMANDED for the following action: 1. Obtain updated VA and/or pertinent private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum medical opinion regarding the etiology of the Veteran’s respiratory disorder from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file and make a notation on the examination report that the claims file was reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following:  Whether it is at least as likely as not (a 50 percent or greater probability) that a diagnosed respiratory disorder (e.g., COPD) began during service or is related to a disease, event, or injury during service? In answering this question, discuss the STRs noting respiratory problems during service, including but not limited to the April 1968 and March 1969 medical notes, and discuss the Veteran’s lay assertions during the December 2019 Board hearing that his current respiratory problems are due to exposure in service to chemicals, gases, and asbestos. See January 2015 Medical Treatment Record – Government Facility; see December 2019 Hearing Transcript. Please explain in detail any opinion provided and the supporting rationale. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.  In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. The Veteran's testimony regarding his medical history has been found to be credible. This history must be taken into account when formulating the etiology opinion. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.