Citation Nr: 21062783 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 20-25 816 DATE: October 12, 2021 ORDER A compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for any disorder to account for unexplained bleeding associated with exercise, to include rectal bleeding, to include as due to diabetes mellitus, and claimed as renal bleeding, is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran has had no worse than Level I auditory acuity in the right ear, and Level VIII auditory acuity 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, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1963 to April 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia. The issues on appeal were previously before the Board in January 2021, when they were remanded to the agency of original jurisdiction (AOJ) for additional development. There has been at least substantial compliance with the remand directives as they relate to the hearing loss claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Although the Board regrets the additional delay, for the reasons expressed below, further development is still required regarding the other issue remaining on appeal. In January 2021, the Board also remanded an issue pertaining to entitlement to service connection for peripheral neuropathy of the upper extremities. In July 2021, after taking further action, the AOJ granted service connection for those disabilities. As such, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where service connection is granted during the pendency of an appeal, a second notice of disagreement must thereafter be timely filed in order to initiate appellate review of "downstream" issues such as the rating and effective date). Entitlement to a compensable rating for bilateral hearing loss Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Hearing loss is evaluated under Diagnostic Code 6100. The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests. See 38 C.F.R. § 4.85. Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id.; See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). However, not all patterns of hearing loss are rated in this manner. For example, if the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). See also 38 C.F.R. §§ 4.85(c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). Pursuant to 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination (Maryland CNC) test and a puretone audiometry test. The Board notes that the Veteran was afforded VA audiometric examinations in September 2015 and May 2021 in accordance with these requirements. In addition, VA treatment records dated in August 2016 include an evaluation which may be in accord with these requirements (although it is not entirely clear from the report which test was employed to obtain speech discrimination data). The September 2015 VA examination revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 50 60 50 45 LEFT 25 75 70 60 58 Speech recognition scores were 92 percent for the right ear, and 72 percent for the left ear. These results correspond to Level I hearing for the right ear and Level V hearing for the left ear under Table VI. However, as the left ear had a puretone threshold less than 30 decibels at 1000 Hertz and above 70 decibels at 2000 Hertz, Table VIa is also for consideration. Under that Table, the results for the left ear correspond to only Level IV hearing. Consequently, the results from Table VI are more favorable to the Veteran. Using the most favorable auditory acuity designations (Level I in the right ear and Level V in the left ear), the results correspond to no more than a 0 (zero) percent (noncompensable) rating under Table VII. The August 2016 VA audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 40 35 29 LEFT 20 65 65 75 56 Speech recognition scores were 96 percent for the right ear and 44 percent for the left ear. The August 2016 results do not demonstrate an exceptional pattern of hearing loss for either ear as to warrant consideration of Table VIa. In addition (and assuming for analytical purposes that the Maryland CNC test was used to obtain speech discrimination scores), these results correspond to Level I hearing for the right ear and Level VIII for the left ear; which, in turn, correspond to a noncompensable rating under Table VII. The May 2021 VA examination revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 40 55 45 39 LEFT 35 70 70 80 64 Speech recognition scores were 96 percent for the right ear, and 88 percent for the left ear. These results correspond to Level I hearing for the right ear and Level III hearing for the left ear under Table VI; which, again, correspond to a noncompensable rating under Table VII. As with the August 2016 testing, these results do not demonstrate an exceptional pattern of hearing loss as to warrant consideration of Table VIa. The Veteran has not identified any deficiency regarding the May 2021 VA examination, nor has he reported that his hearing loss has increased in severity since that time. A thorough review of the other evidence of record reveals no other audiometric evaluations during the period under consideration that are in accord with the requirements of 38 C.F.R. § 4.85(a). The Board acknowledges the Veteran's lay assertions regarding the impact of his diminished hearing. For example, at the September 2015 VA examination he reported difficulty hearing in most all listening situations. At the more recent May 2021 VA examination, he reported that he just could not pick up the words. He reported that he could hear but could not understand. In addition, he noted that he did have a hearing aid, which helped, but that he did not like to wear it. The Veteran's spouse also submitted a statement in September 2015 detailing the decline in the Veteran's hearing over the course of their marriage. She discussed how there were times when she had been talking to him and he had not realized it, or only heard part of a sentence. She also related problems when talking to friends, to include his starting to talk because he thought the friends were finished. The Board is sympathetic to the Veteran's account of his hearing problems. However, as noted above, the assignment of disability ratings for hearing impairment is derived from a mechanical application of the Rating Schedule to numeric designations based on audiometric test results. See Lendenmann, supra. The rating criteria for hearing loss contemplate functional effects such as difficulty understanding speech, as this is precisely the type of effect that VA's audiometric tests are designed to measure. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). A higher rating can be awarded only when loss of hearing has reached a specified measurable level. Finally, the Board has also considered whether the Veteran is entitled to a "staged rating." See Hart, supra. It is the Board's conclusion, however, that none of the evidence demonstrates that his hearing loss disability has ever been more than noncompensably disabling during the period on appeal. The preponderance of the evidence is against the assignment of a higher rating under the Schedule, and a "staged rating" is not warranted. The appeal of this issue is denied. REASONS FOR REMAND Entitlement to service connection for any disorder to account for unexplained bleeding associated with exercise, to include rectal bleeding, to include as due to diabetes mellitus, and claimed as renal bleeding, is remanded. The Board notes that the Veteran was afforded VA examinations in June 2021 to address the nature and etiology of the claimed disability. The Board finds the resulting reports incomplete for purposes of resolving his appeal. In pertinent part, a rectum and anus conditions examination report stated that there were no disorders noted to account for unexplained bleeding. A concurrent VA kidney conditions examination report prepared by the same examiner stated "[n]o diagnosis is warranted [for] renal bleeding." However, in a separate VA medical opinion report, the examiner appeared to endorse the presence of a bleeding disorder (albeit an unexplained one), noting that the unexplained bleeding was a condition separate and apart from the Veteran's service-connected diabetes mellitus and erectile dysfunction and was "unrelated to it." Although that opinion found that the unexplained bleeding was not caused by the service-connected disability, it did not explicitly address the issue of secondary aggravation as required by 38 C.F.R. § 3.310 and Allen v. Brown, 7 Vet. App. 439 (1995). See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Board further notes that no opinion was expressed as to the likelihood that the Veteran's unexplained bleeding was directly related to service, to include as due to exposure to herbicide agents, as contended by the Veteran. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Service connection has already been established for type II diabetes mellitus, ischemic heart disease, and prostate cancer based upon such exposure. See rating decisions entered in November 2014 and December 2020. Once VA has provided an examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). For the reasons stated, a new examination is required. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any non-VA care providers who may possess new or additional evidence pertinent to the issue(s) on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination by an appropriately qualified clinician for purposes of addressing the nature and etiology of his claimed bleeding disability. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should clarify whether the Veteran has a chronic bleeding disability, whether diagnosed or otherwise. In making this determination, the examiner should comment on the Veteran's own account of persistent bleeding problems, as well as the findings set out in the pertinent June 2021 VA examination reports and other evidence of record. The examiner should also consider whether the bleeding described by the Veteran causes functional impairment resulting in loss of earning capacity, irrespective of whether an underlying cause has been diagnosed or identified. For any bleeding disability found to be present during the period on appeal, the examiner should express an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability was incurred in or is otherwise the result of service, to include the Veteran's presumed in-service exposure to herbicide agents. If it is the examiner's conclusion that it is unlikely that a bleeding disability is directly related to service, the examiner should express a further opinion as to whether it is at least as likely as not that the disability (a) was caused or (b) has been aggravated by his service-connected diabetes mellitus with erectile dysfunction. A complete rationale for all opinions expressed should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue(s) remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.