Citation Nr: 21064064 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 20-07 745 DATE: October 18, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to a rating in excess of 40 percent for prostate cancer residuals for the period from September 27, 2017 to May 13, 2021 is denied. Entitlement to a rating of 60 percent for prostate cancer residuals, but no higher, for the period from May 14, 2021 is granted. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss manifests by no more than Level I hearing impairment in the right ear and Level II hearing impairment in the left ear, which corresponds to a noncompensable rating. 2. From September 27, 2017 to May 13, 2021, the Veteran's prostate cancer residuals were manifested by no more than the use of absorbent materials which must be changed between two and four times per day. 3. From May 14, 2021 forward, the Veteran's prostate cancer residuals were manifested by the use of absorbent materials which must be changed more than four times per day. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating of 40 percent, but no higher, from September 27, 2017 to May 13, 2021, for residuals of prostate cancer have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for a rating of 60 percent, but no higher, from May 14, 2021 forward for residuals of prostate cancer have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1965 to July 1969, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board previously remanded this claim in May 2021 for additional development. As the actions specified in the remand have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). During the pendency of the appeal, the RO issued an August 2021 rating decision granting a 60 percent evaluation for prostate cancer residuals, effective August 13, 2021. As this increase is a partial grant of the benefit sought, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). The Board further notes that at the time of the May 2021 remand, the Board also remanded a claim for service connection for irritable bowel syndrome (IBS) secondary to his service-connected residuals of prostate cancer. As that claim was subsequently granted in an August 2021 rating decision, it is no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in all rating claims, when the factual findings show distinct time periods during which the veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. §5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran is currently in receipt of an initial noncompensable rating for service-connected bilateral hearing loss, effective September 27, 2017, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran generally contends that a compensable rating is warranted because his hearing acuity is worse than contemplated by his currently assigned noncompensable disability rating. In evaluating hearing loss, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. 38 C.F.R. § 4.85(a). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I for essentially normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 hertz, divided by four. 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VII is then used to determine the percentage evaluation by intersecting the Roman numeral designations from Table VI for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Exceptional patterns of hearing impairment are evaluated under the provisions of 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). As an initial matter, the Board notes that VA treatment records contain results of an April 2017 and August 2019 examinations conducted for hearing aid fittings. However, these audiograms did not use the Maryland CNC speech discrimination test, and therefore cannot be used for rating purposes. See 38 C.F.R. § 4.85(a). Therefore, consideration of the two audiograms noted above are purposely omitted. Turning to the relevant medical evidence of record, the Veteran underwent a VA audiology examination in October 2017. Upon examination, the Veteran reported that he has difficulty understanding speech, particularly when he interacts with people in his work as a nurse who speak at a low volume, have accents, or don't speak clearly. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 35 30 30 50 36 LEFT 25 25 30 40 30 Speech discrimination scores on the Maryland CNC word list were 94 percent in the right ear and 94 percent in the left ear. The average puretone threshold was 36 decibels in the right ear and 30 decibels in the left ear. The October 2017 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral I in the right ear on the basis of a 36 decibel puretone threshold average and 94 percent speech discrimination, and a numeric designation of Roman numeral I in the left ear on the basis of a 30 decibel puretone threshold average, and 94 percent speech discrimination. The numeric designation for the right ear, I, along with the numeric designation for the left ear, I, entered into Table VII, corresponds to a noncompensable rating for hearing impairment. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present. The Veteran described the impact of his hearing loss as having difficulty hearing conversations and the television. Pursuant to the May 2021 Board remand, the Veteran underwent another VA audiology examination in August 2021. The audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 35 25 25 45 33 LEFT 25 35 40 45 36 Speech discrimination scores on the Maryland CNC word list were 90 percent in the right ear and 88 percent in the left ear. The average puretone threshold was 33 decibels in the right ear and 36 decibels in the left ear. The August 2021 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral I in the right ear on the basis of a 33 decibel puretone threshold average and 90 percent speech discrimination, and a numeric designation of Roman numeral II in the left ear on the basis of a 36 decibel puretone threshold average, and 88 percent speech discrimination. The numeric designation for the right ear, I, along with the numeric designation for the left ear, II, entered into Table VII, corresponds to a noncompensable rating for hearing impairment. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present. In making this finding, the Board is sympathetic to the Veteran's contention that he has difficulty hearing everyday conversations due to his hearing loss disability. However, the Board must consider the Veteran's description of his service-connected disability in conjunction with the clinical evidence of record and the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings for hearing loss are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiological testing of record. As described above, the October 2017 and August 2021 VA audiological testing results, which are the only audiometric tests of record during the relevant period, when applied to the rating criteria, show that the Veteran's bilateral hearing loss disability is not eligible for a compensable rating at any time. Furthermore, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the VA examiners noted that the Veteran reported experiencing a functional impact due to difficulty hearing conversation. The Board finds that such functional impairment, in addition to the Veteran's other lay statements of record, including his hearing testimony, has been appropriately considered. However, the overall evidence, as previously discussed, fails to support the assignment of an initial compensable rating. The Board further notes that the Veteran's reported functional limitations are manifestations of decreased hearing acuity, which is already contemplated by the schedular rating criteria for hearing loss. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing people or the television or telephone. The Board notes that this conclusion is consistent with the United States Court of Appeals for Veterans Claims' holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ("[W]hen 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."). The Board further finds that other than difficulty hearing or understanding speech, the record contains no evidence of other symptoms attributable to the service-connected hearing loss. Finally, the Board acknowledges the Veteran's sincere belief that his hearing loss is worse than reflected by his currently-assigned rating. The Veteran is competent to report symptoms of disability, such as difficulty hearing speech. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating under the rating schedule for hearing loss, as such an opinion requires specialized medical testing and expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, the Board finds that entitlement to an initial compensable rating for bilateral hearing loss is not warranted at any time during the period on appeal. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. 2. Entitlement to a rating in excess of 40 percent for prostate cancer residuals for the period from September 27, 2017 to August 13, 2021 and 60 percent thereafter As an initial matter, the Board notes that the Veteran filed his claim for an increased rating for his prostate cancer residuals in September 2017. Therefore, in its analysis, the Board may only consider the relevant evidence up to one year prior to the date of the claim. The Veteran's disability is rated under Diagnostic Code 7528, governing malignant neoplasms of the genitourinary system. Under Diagnostic Code 7528, a rating of 100 percent is to be assigned for active malignancy. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Following cessation of treatment, the 100 percent rating shall continue with a VA examination to be conducted at the expiration of six months. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. If there has been no local reoccurrence or metastasis, the disability is to be rated based on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id. In this case, treatment records reflect that the Veteran ceased treatment for his prostate cancer in August 2008, as reflected in the VA examination reports and a June 2013 private treatment record. As such, the preponderance of the evidence establishes that the Veteran's treatment ceased in August 2008. Records since August 2008 reflect that the Veteran's cancer has been in remission, including the October 2017 and August 2021 VA examination reports. As there is no evidence of reoccurrence or metastasis following August 2008, a 100 percent rating for active malignancy is not warranted at any point after that date. Instead, the Veteran's prostate cancer must be rated based on residuals. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. Residuals of prostate cancer are to be rated based on either voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Note. As the Veteran's current ratings are based on voiding dysfunction, the Board will begin with those rating criteria, and will then consider any other potentially applicable rating criteria. Voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. For urine leakage, a 20 percent rating is warranted for the wearing of absorbent materials which must be changed less than two times per day. Id. A 40 percent rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. Id. A 60 percent rating is warranted for leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Id. For urinary frequency, a 10 percent rating is warranted for daytime voiding interval between two and three hours or awakening to void two times per night. Id. A 20 percent rating is warranted for daytime voiding interval between one and two hours, or awakening to void three to four times per night. Id. A 40 percent rating is warranted for daytime voiding interval less than one hour or awakening to void five of more times per night. Id. For obstructed voiding, a noncompensable rating is warranted for obstructive symptomatology with or without stricture requiring dilatation one to two times per year. Id. A 10 percent rating is warranted for marked obstructive symptomatology with one or more additional symptoms. Id. A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. Id. During the period on appeal, the Veteran has generally asserted that his disability is worse than currently rated. While the Veteran has generally asserted that his prostate cancer residuals are worse than currently rated, he has not provided any statements specifying the type, frequency, or severity of his symptoms. As such, the issue will be decided based on the medical evidence of record. VA examinations were obtained in October 2017 and August 2021. In October 2017, the Veteran reported chronic urinary problems. The examiner noted that the Veteran had completed treatment in August 2008, and that the prostate cancer was in remission. Voiding dysfunction was noted to be present but did not require the use of absorbent material or an appliance. Daytime voiding with an interval of less than one hour and nighttime awakening five or more times were also noted to be present. The examiner noted that there was no increased urinary frequency. Symptoms of obstructed voiding were present, though the examiner noted that the Veteran did not experience marked hesitancy, a markedly slow stream, markedly weak stream, or a decreased force of stream. In August 2021, the examiner noted that therapy was completed in August 2008, and that the cancer was in remission. The examiner noted voiding dysfunction requiring pads to be changed more than four times per day, but not requiring the use of an appliance. Daytime voiding with an interval of less than one hour and nighttime awakening five or more times were also noted to be present. The examiner further stated that the Veteran had hesitancy, slow stream, weak stream, and a decreased force of stream, all of which were marked in severity. There is no evidence that the above examiners were either not competent or credible. Further, the assessments were based on both the Veteran's reports of his symptoms as well as objective examinations of the disability. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). At his May 2021 hearing, the Veteran testified that he continues to experience an overactive bladder. He reported that he frequently experiences leakage and urgency and occasionally experiences accidents. He stated that he gets up at night "sometimes five times" and wears four changes of Depends a day. VA and private treatment records pertaining to the period on appeal reflect continued regular testing of the Veteran's PSA levels and reports of nocturia, though no additional treatment of the Veteran's prostate cancer or any residual symptoms thereof. Based on the foregoing, a rating in excess of 40 percent is not warranted for the period from September 27, 2017 to May 13, 2021, and an increased rating of 60 percent, but no higher, is warranted from May 14, 2021 forward for residuals of prostate cancer. First, for the period from September 27, 2017 to May 13, 2021, the Veteran stated at his October 2017 VA examination that he did not require the use of absorbent material or an appliance. The statement does not establish that he changed more than four times every day during this period, nor even that he changed more than four times on most days. There is no other evidence of record during this period relating to the Veteran's prostate cancer residuals. an increased rating in excess of 40 percent is not warranted during this period. As the Veteran's statement does not establish that he was required to change his materials more than four times on a daily basis, the Board finds that his disability picture does not more nearly approximate the level of severity contemplated by a 60 percent rating based on leakage. Id. As such, a rating in excess of 40 percent from September 27, 2017 to May 13, 2021is not warranted. 38 C.F.R. § 4.115a. Turning to the period from May 14, 2021 forward, the date the Veteran testified before the undersigned judge, a rating of 60 percent is warranted. The May 14, 2021 hearing testimony clearly reflects that the Veteran's urinary leakage required the use of absorbent materials that needed to be changed more than four times per day. As such, a 60 percent rating from May 14, 2021 forward is warranted. This was confirmed upon examination in August 2021. As a 60 percent rating is the maximum allowable rating for voiding dysfunction, an increased rating in excess of 60 percent is not possible from May 14, 2021 forward. 38 C.F.R. § 4.115a. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. As discussed at the outset of the decision, none of the evidence reflects that the Veteran has had reoccurrence or metastasis of his prostate cancer. As such, a 100 percent rating for active cancer is not warranted at any point. 38 C.F.R. § 4.115b, Diagnostic Code 7528. None of the medical or lay evidence in any way indicates that the Veteran has renal dysfunction of any kind. As such, an increased rating based on renal dysfunction is not warranted. 38 C.F.R. § 4.115a. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The evidence reflects that ratings of 40 percent from September 27, 2017 to May 13, 2021, and 60 percent from May 14, 2021 forward are warranted. However, the preponderance of the evidence is against a finding that ratings in excess of those assigned herein are warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim for a rating higher than 40 percent for the period from September 27, 2017 to May 13, 2021 is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.