Citation Nr: 21001698 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-14 862 DATE: January 11, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure or as secondary to service-connected PTSD, is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1968 to February 1970, including service in the Republic of Vietnam. He is in receipt of the Combat Action Ribbon. In November 2018, the Veteran testified before the undersigned at a Board videoconference hearing. A transcript of that hearing is of record. The appeal was previously before the Board in April 2019, at which time the Board remanded the case for additional development. The case has since returned to the Board. 1. Entitlement to a compensable rating for bilateral hearing loss. The Veteran seeks a higher rating for bilateral hearing loss. He maintains that his hearing loss affects his ability to converse with others, requiring that he ask them to repeat themselves. See, e.g., November 2018 Board Hearing Transcript (testifying that, while at work, he often must ask clients to repeat themselves); November 2019 VA Hearing Loss Disability Benefits Questionnaire (DBQ) (noting that the Veteran’s hearing loss is productive of functional impairment including difficulty understanding speech). 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, Diagnostic Code 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. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See id. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. Id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). 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. See id. 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).   Turning to the evidence of record, an April 2014 VA examination reveals that the Veteran reported experiencing difficulty hearing. See April 2014 VA Hearing Loss DBQ. See also 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: April 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 35 45 50 37.5 96 % LEFT 25 30 45 50 37.5 100 % A January 2019 private audiogram submitted by the Veteran shows pure tone thresholds, in decibels, as follows: January 2019 HERTZ 1000 2000 3000 4000 Avg RIGHT 20 35 45 45 36.25 LEFT 25 40 40 50 38.75 See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (holding that the Board, as a fact finder, is able to interpret audiometric data presented in a graphical format in private audiological examinations). Speech discrimination scores were obtained using the Northwestern University Auditory Test No. 6 (NU-6). See January 2019 Connect Hearing Audiogram (reflecting scores of 96 on the right and 88 on the left). Because 38 C.F.R. § 4.85 requires that audiometric testing be performed using a specific controlled speech discrimination test, the Maryland CNC, as discussed above, the speech recognition scores contained in the January 2019 audiometric report cannot be used in evaluating the Veteran’s bilateral hearing loss.   The November 2019 VA audiological evaluation reflects that the Veteran reported functional impairment associated with his bilateral hearing loss including difficulty understanding speech. See November 2019 VA Hearing Loss DBQ. See also 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: November 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 40 55 55 42.5 94 % LEFT 25 40 55 60 45 94 % To determine the appropriate rating for the Veteran’s hearing loss, the above values are applied to Table VI. See 38 C.F.R. § 4.85. With respect to the right ear, the point where a puretone threshold average of 42.5 dB (the highest of record during the pendency of this claim) intersects with a speech discrimination score of 94 percent (the lowest of record) yields a numeric designation of I. With respect to the left ear, the point where a puretone threshold average of 45 dB (the highest of record) intersects with a speech discrimination score of 94 percent (the lowest of record) yields a numeric designation of I. The point where designations I and I (as derived from Table VI) intersect on Table VII yields a 0 percent (noncompensable) rating under DC 6100. See 38 C.F.R. § 4.85. Further, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 has not been shown on any audiologic evaluation of record dated during the relevant appellate period. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s difficulty engaging in conversation. See, e.g., November 2018 Board Hearing Testimony. Nevertheless, these challenges associated with his hearing loss, as he related, are contemplated by the rating criteria, which are meant to take into account the average impairment resulting from service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding that “when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria” because such effects “are precisely the effects that VA’s audiometric tests are designed to measure”). Moreover, while the Veteran is competent to report difficulty with his hearing, 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim for an increased rating for hearing loss must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure or as secondary to service-connected PTSD Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. As noted, the Board remanded the claim in April 2019 for the provision of a VA examination to determine the nature and likely etiology of the Veteran’s hypertension, as the medical evidence of record was inadequate to decide the claim. See April 2019 Board Decision. In particular, the Board instructed the VA examiner to “provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension is etiologically related to service, to include his in-service herbicide exposure.” Id. In doing so, the Board also instructed the VA examiner to consider the recent finding by the National Academies of Sciences, Engineering, and Medicine (NASEM) (formerly NAS) in Veterans and Agent Orange Update 11 (2018) that there is “sufficient evidence of an association” between hypertension and herbicides such as Agent Orange used during the Vietnam War. Id. The Veteran was afforded a VA examination in November 2019; however, the opinion of the examining VA clinician is inadequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this regard, the VA examiner diagnosed hypertension, and reported a date of diagnosis in 1974. See November 2019 VA Hypertension DBQ. As to etiology, the VA examiner acknowledged the Veteran’s “long history of hypertension” but ultimately found against a relationship between the Veteran’s current hypertension and his active service. See November 2019 VA Medical Opinion DBQ. In support of this finding, the VA examiner noted that “common causes of hypertension are smoking, obesity, genetics, high salt intake, stress,” and that “[t]here was not enough information in the medical records to completely rule out all causes of hypertension.” Id. This opinion is inadequate for a number of reasons. First, the VA examiner did not employ the correct legal standard, inexplicably requiring that there be sufficient medical evidence “to completely rule out all causes of hypertension” in order to relate the Veteran’s hypertension to his active service. Additionally, and perhaps most significantly, the VA examiner failed to consider or address in any way the NASEM’s elevation of hypertension to the “Sufficient Evidence” category of diseases associated with herbicide agent exposure, despite the Board’s explicit instruction to do so. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, on remand, a new VA examination and opinion is required. See Barr, 21 Vet. App. at 311; Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (VA’s duty to assist includes providing an adequate examination when such an examination is indicated). The matters are REMANDED for the following action: 1. Obtain and associate with the file any outstanding VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate clinician, other than the VA examiner who performed the November 2019 VA hypertension examination, if possible, to assist in determining the nature and etiology of the Veteran’s hypertension. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. All pertinent symptomatology should be reported in detail. After eliciting a full history, conducting a complete review of the claims file, performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hypertension either (i) had its clinical onset during active service; (ii) was manifest within a year of service separation; (iii) was noted during service with continuity of the same symptomatology since service; or (iv) is otherwise related to any incident of service, to include the Veteran’s in-service herbicide agent exposure. In providing the requested opinion, the examiner must consider the fact that in a recent report, Veterans and Agent Orange Update 11 (2018), the National Academies of Sciences, Engineering, and Medicine (NASEM) concluded that there is “sufficient evidence of an association” between hypertension and herbicides such as Agent Orange. To the extent deemed warranted, the examiner should consider whether any scientific or medical studies are found persuasive or unpersuasive, whether there are any risk factors for the development of the Veteran’s hypertension specific to his medical history, and whether it manifested in an unusual manner. The examiner is also asked to consider and address the Veteran’s service treatment records, including specifically the Veteran’s blood pressure reading of 140/78 on separation examination in February 1970, as well as the evidence showing that the Veteran was diagnosed with hypertension within several years of his separation from active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the hypertension was either (a) caused by, or (b) aggravated by any of the Veteran’s service-connected disabilities, to specifically include PTSD, including as a result of treatment and/or medication taken for any service-connected disability. In providing the requested opinion, the examiner is asked to consider and address the Veteran’s competent assertions that he was diagnosed with hypertension due to “combat stress.” The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.