Citation Nr: 21064993 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 21-00 796 DATE: October 22, 2021 ORDER Entitlement to a rating greater than 10 percent for bilateral hearing loss is denied. Entitlement to an effective date earlier than February 21, 2018, for assignment of the 10 percent rating bilateral hearing loss is denied. REMANDED Entitlement to service connection for headaches disability, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected left knee disability, is remanded. FINDING OF FACT 1. The Veteran's bilateral ear hearing loss has been manifested by hearing acuity of no worse than a category V in the right ear and no worse than Level II in the left ear. 2. In an October 2006 rating decision, service connection was granted, and noncompensable rating assigned, for bilateral hearing loss, effective February 8, 2004. The Veteran did not initiate an appeal or submit new and material evidence within one year of that decision; the decision became final. 3. The earliest document in the record that may be accepted as a claim for increased rating for bilateral hearing loss is a Fully Developed Claim (FDC) for an increased rating for bilateral hearing loss received from the Veteran on February 21, 2018. CONCLUSION OF LAW 1. The criteria for a rating greater than 10 percent 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 (DC) 6100. 2. The criteria for entitlement to an effective date earlier than February 21, 2018, for a 10 percent rating for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to November 1969. 1. Entitlement to a rating greater than 10 percent for bilateral hearing loss The Veteran contends that he is entitled to a higher rating 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). The Veteran was given a VA examination in March 2018. The Veteran reported to the examiner that he has difficulty hearing and understanding conversational speech. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 60 70 80 LEFT 35 35 50 60 65 The puretone threshold average was 69 in the right ear; 45 in the left. An exceptional pattern of hearing loss was noted in the right ear. 38 C.F.R. § 4.86(a). Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 88 in the left ear. Under Table VI, when considered with the Veteran's speech audiometry results, this corresponds to a designation of IV in the right ear and II in the left ear; a noncompensable rating would be assigned. However, given the exceptional pattern of hearing loss in the right ear, test results correspond to a designation of V in the right ear using Table VIA. Id. Considering those results with a designation of II in the right ear correspond with a 10 percent disability rating under Table VII. Based on the evidence above, a rating in excess of 10 percent prior to February 21, 2018 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 descriptions of difficulty hearing and understanding conversational speech. 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). In summary, the preponderance of the evidence is against finding for a rating greater than 10 percent for bilateral hearing loss. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. 2. Entitlement to an effective date earlier than February 21, 2018, for a 10 percent rating bilateral hearing loss is denied. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for the assignment of the 10 percent rating for a bilateral hearing loss is not warranted. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation for claims to reopen is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim providing that "[a]ny communication or action, indicating an intention to apply for one or more benefits... [s]uch informal claim must identify the benefit sought." 38 C.F.R. § 3.155 (a) (2014). VA then will send a claimant a formal application in response to the informal claim. If the formal application form is returned within 1 year from the date it was sent to the claimant, the effective date for the award of service connection will be the date of the informal claim. 38 C.F.R. § 3.155. Effective March 24, 2015, the law no longer allows for informal claims and the pertinent regulation allows a claimant to submit intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155. The record shows that February 21, 2018 is the first communication for an increased rating for bilateral hearing loss following the October 2006 rating decision granting service connection for bilateral hearing loss and assigning a noncompensable rating. In May 2018 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a 10 percent rating for bilateral hearing loss, effective the February 21, 2018 date of claim. There are no other claims or requests for rating increases for bilateral hearing loss prior to February 21, 2018. The Board finds the Veteran is already in receipt of the earliest possible effective date for a 10 percent disability rating for his bilateral hearing loss. A thorough review of the claims file shows no written communication by either the Veteran or his representative evidencing any intent to seek increased compensation disability benefits for a right shoulder disability prior to February 21, 2018, when the Fully Developed Claim (FDC) was received. Therefore, the preponderance of the evidence is against the claim for entitlement to an earlier effective date for a 10 percent rating for the bilateral hearing loss. REASONS FOR REMAND 1. Entitlement to service connection for headache disability, to include as secondary to service-connected disability, is remanded. The claim must be remanded because the July 2021 and August 2021 VA examinations are inadequate; those opinions considered direct service connection only. The Veteran's June 2020 VA treatment records show he has been on many medications for his service-connected posttraumatic stress disorder (PTSD) that have caused headaches. Therefore, a medical opinion is necessary to determine whether any medications used to treat the Veteran's service-connected PTSD caused or aggravated his headaches. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disability, is remanded. The claim must be remanded because the August 2021 VA medical opinion is inadequate. Although, the examiner opined that the Veteran's PTSD did not cause his hypertension, the examiner used the wrong legal standard when opining that the Veteran's hypertension was not aggravated beyond its natural progression. The correct legal standard is "any increase" in disability. Therefore, a new VA medical opinion is necessary to address aggravation. The opinion obtained on remand must also consider that VA has found that a presumption of service connection is warranted for hypertensive vascular disease for prisoners of war (POWs). This presumption is based on several medical studies indicating that veterans who have a long-term history of PTSD have a high risk of developing cardiovascular disease and myocardial infarction. See Presumptions of Service Connection for Diseases Associated with Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated with Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). Although these Federal Register documents focus on POWs having a high rate of PTSD, the relevant focus was on a possible association between PTSD and cardiovascular disease, to include hypertension. 3. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected left knee disability, is remanded. The claim must be remanded again because the July 2021 VA examination is inadequate. The July 2021 VA examination is inconsistent in reporting the severity of the Veteran's right knee. In the beginning of the Disability Benefits Questionnaire (DBQ), the examiner reports that the Veteran's right knee is undamaged, but later in the DBQ, the examiner notes crepitus and pain in the Veteran's right knee. The July 2021 VA examiner does not address the April 2020 private orthopedic opinion that the Veteran's right knee should also be service connected. On remand a new examination is warranted. The matters are REMANDED for the following action: 1. Forward copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion on the likely etiology of the Veteran's headache disability. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. Based on a review of the record, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed headache condition was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed headache condition is (i) caused by or (ii) aggravated by the Veteran's service-connected PTSD, to include any medications taken to treat his PTSD? The examiner must consider and discuss VA treatment records from June 6, 2020 (Received in the record on November 17, 2020) that state that the Veteran's medications used to treat his PTSD causes him headaches. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. Forward copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion for on the likely etiology of the Veteran's hypertension. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. After reviewing the record, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed hypertension condition was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed hypertension condition is (i) caused or (ii) aggravated by the Veteran's service-connected PTSD? In answer this, the examiner must consider and discuss as necessary the VA material suggesting an association between PTSD and hypertension. See Presumptions of Service Connection for Diseases Associated with Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated with Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). Although these Federal Register documents focus on POWs having a high rate of PTSD, the relevant focus was on a possible association between PTSD and cardiovascular disease, to include hypertension. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 3. Forward copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion on the nature and likely etiology of the Veteran's right knee disability. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. The examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed right knee condition was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed right knee condition is (i) caused by or (ii) aggravated by the Veteran's service-connected left knee disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 4. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.