Citation Nr: 21061266 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 15-01 414 DATE: October 1, 2021 ORDER A compensable rating for left ear hearing loss is denied. REMANDED Entitlement to service connection for headaches, to include as due to undiagnosed illness or other qualifying chronic disability, is remanded. Entitlement to service connection for joint pain, to include as due to undiagnosed illness or other qualifying chronic disability, is remanded. FINDING OF FACT The Veteran's left ear hearing loss has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level IV in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for left ear 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 from February 1989 to February 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A December 2018 Board decision remanded the claims to obtain a VA hearing loss examination. The Board finds that the RO has substantially complied with the Board's prior remand order as an adequate VA hearing loss examination was provided in June 2021. Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to a compensable rating for left ear hearing loss. The issue of consideration of an extraschedular rating was raised by a November 2018 Appellate Brief. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. 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. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In this case, the rating criteria for hearing loss contemplate the functional effects of trouble hearing and understanding others, and asking people to repeat themselves. The threshold issue under Thun is thus is not met, and further consideration of an extraschedular rating is not warranted. 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. 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). 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). A January 2013 VA examination reveals that the Veteran reported that he has ask people to repeat themselves. 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: Jan. 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 15 20 35 21 96% LEFT 15 60 70 60 51 84% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown as the pure tone threshold at 1000 Hertz was less than 55 decibels, and at 2000 Hertz was less than 70 decibels. A June 2021 VA examination reveals that the Veteran reported trouble hearing and understanding others. 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: Jun. 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 40 45 40 36 96% LEFT 20 60 75 65 55 80% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown as the pure tone threshold at 1000 Hertz was less than 55 decibels, and at 2000 Hertz was less than 70 decibels. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted at any point during the appeal period. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including trouble hearing and understanding others, and asking people to repeat themselves. The Veteran is competent to report difficulty with his hearing; however, 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. 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for left ear 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 doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page) REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as due to undiagnosed illness or other qualifying chronic disability. 2. Entitlement to service connection for joint pain, to include as due to undiagnosed illness or other qualifying chronic disability. Issues 1 & 2: The Veteran contends that he had no headaches or joint pain until his service, see Form 9 (December 2014), and indicated that they are due to his service in the Persian Gulf War, see VA Form 21-526 (September 2011). It is noted that headaches, muscle pain, and joint pain are signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness in a Persian Gulf veteran. 38 C.F.R. § 3.317(b). Private treatment records show that, in September 2011, the Veteran's present illnesses included systemic symptoms fatigue, pain, stiffness, aches, and musculoskeletal symptoms. VA treatment records indicate treatment for migraines and joint pain. However, the evidence is inadequate to determine if the Veteran qualifies as a Persian Gulf veteran under 38 C.F.R. § 3.317(e). The Veteran's DD Form 214 shows he was awarded the Humanitarian Service Medal in January 1992 and the Sea Service Deployment Ribbon in August 1992, but it does not explicitly show service in the Persian Gulf. Service treatment records show that the Veteran was aboard the USS Tortuga in December 1992. VA attempted to verify service in the Persian Gulf, but a February 2013 response to a request for information included that "THE RECORD AT THIS CENTER APPEARS TO BE INCOMPLETE." See VA Form 21-3101 (February 2013). Although a subsequent response shows that all personnel and treatment records at NPRC were provided, the obtained records provide no indication of the geographic location for the USS Tortuga when the Veteran earned the Humanitarian Service Medal in January 1992 and Sea Service Deployment Ribbon in August 1992. Accordingly, the Board finds that remand is necessary to ensure that VA has fulfilled its duty to assist the Veteran obtain records in the custody of a Federal department or agency, see 38 C.F.R. § 3.159(c)(2). Accordingly, the matters are REMANDED for the following action: 1. Attempt to verify the Veteran's asserted service in the Persian Gulf. Requests for information pertaining to the Veteran's assignment aboard the USS Tortuga should be sent to the Textual Records office at the National Archives and Records Administration (NARA), the U.S. Department of Army, Records Management and Declassification Agency (RMDA), or any other appropriate agency. Make at least two attempts to obtain the records. If it is determined that the records do not exist or that further attempts to obtain the records would be futile, a formal finding should be entered into the record outlining the development taken and the Veteran should be notified and provided the opportunity to obtain and submit evidence of his service in the Persian Gulf. 2. If the above development shows that the Veteran is a Persian Gulf veteran under 38 C.F.R. § 3.317(e), then schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed headaches and joint pain. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness was not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's headaches and joint pain were incurred in, or are otherwise related to, his active service? (Continued on the next page) 3. Ensure that the VA medical opinion(s) obtained includes a complete rationale for the conclusions reached. The medical opinion(s) must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.