Citation Nr: 21065859 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-48 498 DATE: October 27, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to an initial disability rating in excess of 10 percent for lumbar strain with intervertebral disc disease prior to May 20, 2019, in excess of 40 percent prior to November 20, 2020, and in excess of 10 percent thereafter is remanded. Entitlement to an initial disability rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral pain syndrome of the left knee is remanded. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is remanded. Entitlement to an initial disability rating in excess of 10 percent for left hip trochanteric pain syndrome with osteoarthritis (based on impairment of adduction, abduction, and rotation) is remanded. Entitlement to an initial compensable disability rating for left hip trochanteric pain syndrome with osteoarthritis (based on impairment of extension) is remanded. Entitlement to an initial compensable disability rating for left hip trochanteric pain syndrome with osteoarthritis (based on impairment of flexion) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is remanded. INTRODUCTION The Veteran served on active duty from September 1983 to December 1983 and July 1986 to February 1990. When this case was previously before the Board in July 2019, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. FINDINGS OF FACT 1. Throughout the entire rating period, the Veteran's hearing impairment has been no worse than Level III in the right ear and Level II in the left ear. 2. The Veteran's service-connected tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran has been afforded appropriate VA examinations to address the severity of his service-connected bilateral hearing loss and tinnitus in June 2017 and July 2020. He has not asserted, and the evidence of record does not show, that his disabilities have increased significantly in severity since his most recent examination. The Veteran was also afforded an opportunity for a hearing before the Board, but declined to do so. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Disability ratings for hearing loss disability are derived from 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 schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85 (d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) 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. (b) When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Factual Background and Analysis Hearing Loss Rating By way of background, the Veteran was awarded service connection for bilateral hearing loss in an August 2017 rating decision. A noncompensable disability rating was assigned at that time. In response to his claim, the Veteran was afforded a VA audiological evaluation in June 2017; the examiner reviewed the evidence of record and noted the Veteran's history. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 20 20 LEFT 15 10 15 20 20 Speech recognition was 76 percent in the right ear and 88 percent in the left ear. Applying the values above to Table VI results in a Level III Roman numeral designation for the right ear and Level II Roman numeral designation for the left ear. Application of a Level III and Level II designation to Table VII results in a noncompensable rating. The readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment. The Veteran was afforded a second VA examination in July 2020. The examiner again reviewed the evidence of record and noted the Veteran's history. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 20 25 LEFT 15 25 20 25 20 Speech recognition was 92 percent in the right ear and 92 percent in the left ear. Applying these values above to Table VI results in a Level I Roman numeral designation for the right ear and Level I Roman numeral designation for the left ear. Application of a Level I and Level I designation to Table VII results in a noncompensable rating. The readings reported in this evaluation again did not meet the requirements for evaluation as an exceptional pattern of impairment. The Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In accordance with this decision, the June 2017 and July 2020 examiners stated that the Veteran has difficulty understanding speech clearly and must turn the television up loud and ask people to repeat themselves allot. On review of the file, it is evident the criteria for a compensable rating under Diagnostic Code 6100 are not met. Although the audiological evaluations clearly show the Veteran has hearing loss, the hearing loss has not yet met the compensable level under the rating schedule. Thus, a compensable rating for bilateral hearing loss is not warranted under the schedular criteria. Tinnitus Rating The Veteran was awarded service connection and a 10 percent rating for tinnitus in an August 2017 rating decision. The originating agency denied the Veteran's request for a higher rating for this disability, because the maximum schedular rating authorized by law has been assigned. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the Court held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to VA's interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limit a veteran to a single 10 percent disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran's service-connected tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available for such disability. See 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a separate schedular evaluation for tinnitus in each ear or a higher schedular rating for tinnitus, the Veteran's claim for such benefits is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND The Board is of the opinion that additional development is required before the remaining claims on appeal are decided. Increased Ratings Claims Initially, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As previously indicated in the Board's July 2019 remand, to be considered adequate, a musculoskeletal examination must include an assessment of the veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran underwent VA back, hip, and knee examinations in November 2020; however, the examiner failed to discuss all procurable facts relative to the Veteran's flare-ups, to include frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups. Additionally, the examiner failed to provide non-weight bearing and weight bearing range of motion assessments as instructed. As such, a remand is again required in order to obtain these critical evaluation assessments. Since the Veteran's bilateral lower extremity radiculopathies will also be assessed in the course of the pending VA back examination, the Board will not address those issues at this time. Service Connection Claims In the course of the July 2019 remand, the Board also instructed the RO to obtain VA examinations and medical opinions addressing the Veteran's claims for service connection for hypertension and ED. The RO was instructed to obtain medical opinions addressing whether the Veteran's claimed disabilities were either incurred in service, caused by his service-connected disabilities, or aggravated by his service-connected disabilities. The Veteran underwent VA hypertension and male reproductive system conditions examinations in July 2020. Though the Veteran was diagnosed with both hypertension and ED, the examiner failed to provide medical opinions addressing whether the disabilities were either incurred in service or aggravated by his service-connected disabilities. Further, the Veteran has asserted his disabilities may be consequentially related to the medications taken for his service-connected disabilities. The examiner did not adequately address this theory of secondary entitlement. To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing insufficiencies, the Board finds new examinations and medical opinions are warranted. TDIU Claim Finally, the Board notes that during the July 2019 remand the RO was instructed to obtain a comprehensive VA medical opinion addressing the functional impact of the Veteran's disabilities both alone, as well as in concert. The RO was specifically asked to obtain an opinion which addressed such factors as walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. The RO subsequently obtained separate opinions addressing the Veteran's individual disabilities in isolation but failed to obtain an assessment of the Veteran's disabilities in concert as directed. Based on the above-noted insufficiencies, the Board finds a remand is again necessary in order to achieve substantial compliance with the Board's prior remand instructions. Accordingly, this case is REMANDED for the following actions: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected thoracolumbar spine, left hip, and bilateral knee disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 2. Also, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's claimed hypertension and erectile dysfunction disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) the Veteran's hypertension or erectile dysfunction disability: a) originated during his periods of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected disabilities, to include any medications taken therefor; or c) was worsened to any degree by his service-connected disabilities, to include any medications taken therefor. The examiner must provide a complete rationale for all opinions offered. In this regard, the examiner must discuss and consider the Veteran's competent lay statements regarding the onset and nature of his hypertension and erectile dysfunction. If the examiner is unable to provide any requested opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Finally, a medical opinion should be obtained from a VA examiner with sufficient experience and expertise to address the occupational effects caused by the Veteran's service-connected disabilities. The examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected conditions, to include the medications taken for each disability. The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. The examiner must discuss and consider the Veteran's competent lay statements. In addition, the examiner should comment on whether there is a 50 percent or better probability that the Veteran's service-connected disabilities, either alone or in concert, are sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.