Citation Nr: 21067244 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-29 614 DATE: November 3, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for left upper extremity (LUE) peripheral neuropathy (PN) and/or radiculopathy (left arm disability), is remanded. Entitlement to service connection for right upper extremity (RUE) peripheral neuropathy (PN) and/or radiculopathy (right arm disability), is remanded. Entitlement to service connection for left upper extremity (LLE) peripheral neuropathy (PN) and/or radiculopathy (left leg disability), is remanded. Entitlement to service connection for right upper extremity (RLE) peripheral neuropathy (PN) and/or radiculopathy (right leg disability), is remanded. FINDING OF FACT The competent evidence of record shows that the Veteran's bilateral hearing loss was manifested by no worse than Level I hearing acuity for the right ear and Level II hearing acuity for the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2016 and July 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In the January 2016 rating decision, the RO, in relevant part, granted service connection for bilateral hearing loss, with a noncompensable disability rating, effective October 1, 2015, and denied service connection for bilateral upper PN, LLE PN, and neck condition. In the July 2017 rating decision, the RO denied service connection for RLE PN. The Veteran timely submitted substantive appeals and requested a hearing. In August 2019, the Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judges (ALJ). The hearing transcript is of record. In an October 2019 decision, the Board remanded the issues of entitlement to a higher disability rating for bilateral hearing loss and the issues of service connection for bilateral upper PN, LLE PN, and neck condition. As a preliminary matter, the Board notes that, although the Veteran described his disabilities as bilateral upper and lower PN, a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In this case, the evidence of record shows that the Veteran is claiming service connection for bilateral upper and lower extremity disabilities, to include PN and/or radiculopathy. See August 2019 Board Hearing Tr. Accordingly, the Board has recharacterized the issues on appeal. 1. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. A disability rating is determined by the application of 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is seeking a compensable disability rating for his service-connected bilateral hearing loss. Specifically, the Veteran contends that his hearing loss is more severe than reflected by his assigned disability rating as he has trouble understanding some people. See November 2020 VA Examination. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Turning to the evidence of record, the Veteran was afforded a VA audiological examination in January 2016, November 2020, and January 2021. In the January 2016 VA examination puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 35 40 35 LEFT 15 25 40 35 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 31 decibels for the right ear and 29 decibels for the left ear. Maryland CNC testing revealed speech recognition ability of 96 percent for the right ear and 96 percent for the left ear. Applying the test results of the January 2016 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right ear and Level I for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable disability rating for the Veteran's service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. In the November 2020 VA examination puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 45 40 25 LEFT 20 30 40 25 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 33 decibels for the right ear and 29 decibels for the left ear. Maryland CNC testing revealed speech recognition ability of 92 percent for the right ear and 92 percent for the left ear. Applying the test results of the November 2020 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right ear and Level I for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable disability rating for the Veteran's service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. In the January 2021 VA examination puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 40 35 20 LEFT 15 25 35 25 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 28 decibels for the right ear and 25 decibels for the left ear. Maryland CNC testing revealed speech recognition ability of 92 percent for the right ear and 90 percent for the left ear. Applying the test results of the January 2021 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right ear and Level II for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable disability rating for the Veteran's service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. There are no other audiometric testing results during the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. The Board has carefully considered the Veteran's statements and in no way discounts the Veteran's asserted difficulties or his assertions that his bilateral hearing loss should be rated higher. However, the valid VA examinations of record were conducted in accordance with the requirements for a hearing impairment examination for VA purposes. See 38 C.F.R. § 4.85(a). The Veteran's lay statements are both competent and credible in regard to reporting worsening hearing acuity and functional effects. However, more probative of the degree of the disability are the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulties with his hearing; however, he is not competent to assign particular speech recognition scores or puretone decibel readings to his current acuity problems. Additionally, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Accordingly, the Board finds that a compensable disability rating for the Veteran's bilateral hearing loss is not warranted. The evidence preponderates against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. The Veteran is seeking service connection for a neck condition. Specifically, he contends that his currently diagnosed neck disability is related to his inservice military occupational specialty (MOS). His duties as a field lineman required that him to pull himself up telephone poles using his arms and legs carrying heavy equipment. This put a lot of stress on his joints. See August 2019 Board Hearing Tr. The Veteran has additionally reported that his cervical strain onset during service following an injury to his left shoulder. The pain was on the left side of his neck and down his left shoulder and has gotten worse over time. See October 2020 VA Examination. As noted above, in October 2019, the Board remanded this issue for additional development. Specifically, to the RO was requested to obtain a medical nexus opinion. Although the RO obtained a medical opinion in October 2020, unfortunately, it is inadequate for adjudicative purposes and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). In this case, the October 2020 VA examiner opined that the Veteran's claims file does not reflect a complaint or treatment for a neck injury during service. In addition, the Veteran did not seek treatment for the injury until over 30 years later therefore there is no chronicity of care and a nexus is not established. Here, the examiner fails to address the Veteran's lay assertions regarding an inservice event and symptoms of pain since service. An adequate opinion addressing the Veteran's contentions is necessary to adjudicate the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a remand is warranted. 2. Entitlement to service connection for left arm disability is remanded. The Veteran is seeking service connection for a LUE PN and/or radiculopathy. Specifically, he contends that his currently diagnosed disability is related to his inservice MOS. His duties as a field lineman required that him to pull himself up telephone poles using his arms and legs carrying heavy equipment. This put a lot of stress on his joints and his disabilities are all connected. In addition, he served in the Motor Pool and was exposed to Benzene. See August 2019 Board Hearing Tr.; June 2018 Statement. The Veteran has additionally reported that his left arm pain onset during service following an injury to his left shoulder. The pain was on the left side of his neck and down his left shoulder and has gotten worse over time. See October 2020 VA Examination; September 1971 STR. As noted above, in October 2019, the Board remanded this issue for additional development. Specifically, to the RO was requested to obtain a medical nexus opinion. Although the RO obtained a medical opinion in October 2020, unfortunately, it is inadequate for adjudicative purposes and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). In this case the October 2020 VA examiner diagnosed the Veteran with LUE PN. The examiner opined that it was less likely than not that the Veteran's disability was related to service. He explained that the Veteran's claims file does not reflect complaints or treatment for LUE PN nor Benzene exposure during service. Although the Veteran did seek medical attention for LUE shoulder pain in 2015, this was over 30 years after the left shoulder injury. There was no chronicity of care, therefore a nexus was not established. Here, the examiner fails to address the Veteran's lay assertions regarding an inservice event, exposure to benzene during service, and symptoms of pain since service. An adequate opinion addressing the Veteran's contentions is necessary to adjudicate the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a remand is warranted. 3. Entitlement to service connection for right arm disability is remanded. The Veteran is seeking service connection for a RUE PN and/or radiculopathy. Specifically, he contends that his currently diagnosed disability is related to his inservice MOS. His duties as a field lineman required that him to pull himself up telephone poles using his arms and legs carrying heavy equipment. This put a lot of stress on his joints and his disabilities are all connected. In addition, he served in the Motor Pool and was exposed to Benzene. See October 2020 VA Examination; August 2019 Board Hearing Tr.; June 2018 Statement. As noted above, in October 2019, the Board remanded this issue for additional development. Specifically, to the RO was requested to obtain a medical nexus opinion. Although the RO obtained a medical opinion in October 2020, unfortunately, it is inadequate for adjudicative purposes and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). Here, in an October 2020 VA examination, the Veteran was not found to have a current disability. The examiner therefore opined that the Veteran's disability was not related to service. However, in an October 2020 VA cervical neck examination, the Veteran was found to have RUE PN. Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Accordingly, the October 2020 VA examinations are internally inconsistent, and a new VA examination is warranted. 4. Entitlement to service connection for left leg disability is remanded. 5. Entitlement to service connection for right leg disability is remanded. The Veteran is seeking service connection for a bilateral lower extremity PN and/or radiculopathy. Specifically, he contends that his currently diagnosed disabilities are related to his inservice MOS. His duties as a field lineman required that him to pull himself up telephone poles using his arms and legs carrying heavy equipment. This put a lot of stress on his joints and his disabilities are all connected. In addition, he served in the Motor Pool and was exposed to Benzene. See August 2019 Board Hearing Tr.; June 2018 Statement; see also October 2020 VA Examination. Regarding entitlement to service connection for a left leg disability, as noted above, in October 2019, the Board remanded this issue for additional development. Specifically, to the RO was requested to obtain a medical nexus opinion. Although the RO obtained a medical opinion in October 2020, unfortunately, it is inadequate for adjudicative purposes and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). In this case, a VA examiner diagnosed the Veteran with bilateral lower extremity PN. Regarding the Veteran's left leg disability, the examiner opined that it was less likely than not that the Veteran's LLE disability was related to service. The examiner explained that the Veteran's file does not reflect complaints or treatment of PN due to benzene exposure. The records are negative for any specific information or evidence showing exposure to benzene products; therefore, a nexus has not been established Here, the October 2020 VA examiner fails to address the Veteran's lay assertions regarding an inservice event, exposure to benzene during service, and symptoms of pain since service. An adequate opinion addressing the Veteran's contentions is necessary to adjudicate the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a remand is warranted. Regarding entitlement to service connection for a right leg disability, although the Veteran has been afforded a VA examination, an examiner has not provided a VA medical opinion. As such, a remand is warranted for a VA opinion. The matters are REMANDED for the following action: 1. The AOJ should obtain all outstanding VA treatment records and any private treatment records identified by the Veteran. All obtained records should be associated with the evidentiary record. 2. After all outstanding treatment records have been associated with the claims file, obtain a VA opinion to determine the nature and etiology of the Veteran's cervical disability. the need for a VA examination is left to the discretion of the clinician selected to write the opinion. The electronic claims folder, including a copy of this remand, should be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. The examiner should: Determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cervical disability during the appeal period had its onset during active service or is related to any in-service disease, event, or injury. In doing so, the examiner should address the Veteran's lay assertions regarding inservice injuries related to his MOS, exposure to benzene, and symptomology since service. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. 3. Schedule the Veteran for a VA examination by an appropriately qualified VA health care professional to determine the nature and etiology of any diagnosed bilateral upper and/or lower extremity PN and/or radiculopathy. The electronic claims folder, including a copy of this remand, should be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. The examiner should: (a) Identify all diagnosed PN and/or radiculopathy of the bilateral upper and lower extremities. (b) Determine whether it is at least as likely as not (50 percent probability or greater) that any PN and/or radiculopathy had its onset during active service or is related to any in-service disease, event, or injury. In doing so, the examiner should address the Veteran's lay assertions regarding inservice injuries, his injuries related to his MOS, exposure to benzene, and symptomology since service. The examiner should also address the Veteran's contentions that all of his joint pains are related. See August 2019 Board Hearing Tr. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.