Citation Nr: 21069179 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 11-23 644 DATE: November 17, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for muscle fatigue, to include as due to an unexplained chronic multi-symptom illness (MUCMI), is remanded. Entitlement to service connection for headaches, to include as due to MUCMI and as secondary to service-connected heart condition, is remanded. FINDING OF FACT For the entire appeal period, the Veteran's bilateral hearing loss has been manifested by no more than Level IV and Level II impairment. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1968 to August 1970 and December 1990 to September 1991, to include service in Southwest Asia. The issue was remanded by the Board of Veterans' Appeals (Board) in June 2017 and October 2020 for further development. The most recent remand in October 2020 specifically instructed the regional office (RO) to schedule a VA examination for the Veteran's increased rating claim and obtain medical opinions pertaining to the Veteran's service connection claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an initial compensable rating for bilateral hearing loss is denied. The Veteran contends that he is entitled to an increased rating for his bilateral hearing loss. Hearing impairment is evaluated pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. 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). 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. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.86. 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). In consideration of the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to a compensable rating for his bilateral hearing loss for the entire period on appeal. The Veteran appeared for a VA examination in May 2009. Pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Avg. CNC RIGHT 40 35 45 50 43 92% LEFT 35 45 50 55 46 92% The pure tone threshold average was 43 decibels in the right ear and 46 decibels in the left ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 92 percent in both ears. Under Table VI of 38 C.F.R. § 4.85, the scores for both ears correlate to a Roman numeral I. A noncompensable rating is warranted under Diagnostic Code 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. The Veteran appeared for a second VA examination in February 2010. Pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Avg. CNC RIGHT 35 40 50 55 45 88% LEFT 35 40 50 50 44 84% The pure tone threshold average was 45 decibels in the right ear and 44 decibels in the left ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 88 percent in the right ear and 84 percent in left ear. Under Table VI of 38 C.F.R. § 4.85, the scores for both ears correlate to a Roman numeral II. A noncompensable rating is warranted under Diagnostic Code 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. In July 2021, the Veteran underwent another VA examination. Pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Avg. CNC RIGHT 40 50 60 55 51 80% LEFT 45 40 50 50 46 84% The pure tone threshold average was 51 decibels in the right ear and 46 decibels in the left ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 80 percent in the right ear and 84 percent in left ear. Under Table VI of 38 C.F.R. § 4.85, the score for the right ear correlate to a Roman numeral IV, while the left ear correlate to a Roman numeral II. A noncompensable rating is warranted under Diagnostic Code 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. The Board notes that the Veteran was afforded a VA examination for his bilateral hearing loss in February 2016. However, as noted by the October 2020 Board decision, word discrimination scores were not obtained, which renders the February 2016 VA examination inadequate for adjudication purposes. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, the audiological reports do not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86(a), (b). The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of decreased hearing acuity. The Veteran is competent to report difficulty with his hearing; however, as noted above, 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, supra. 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 preponderance of the evidence demonstrates that the Veteran's bilateral hearing loss does not meet the criteria for a compensable rating under Diagnostic Code 6100, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, an increased rating is not warranted at this time. REASONS FOR REMAND Upon review of the record, the Board finds that the claims must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 2. Entitlement to service connection for muscle fatigue, to include as due to MUCMI, is remanded. The Board finds that a new VA examination and etiological opinion is warranted for the Veteran's claim. The Veteran contends that he has muscle fatigue that is related to service, or in the alternative, is due to a MUCMI. A medical opinion disability benefits questionnaire (DBQ) provided by a VA examiner from a review of records was associated with the Veteran's claims file in November 2020. The November 2020 examiner noted that the Veteran's medical records were negative for a documented diagnosis of muscle fatigue. However, she found that the Veteran's service-connected heart, shoulder, and knee conditions, as well as PTSD, include symptoms of fatigue. Another medical opinion DBQ provided by a different VA examiner was associated with the Veteran's claims file in March 2021. The March 2021 examiner opined it was less likely than not the Veteran's muscle fatigue was related to service because there was no objective diagnosis and no thorough workup had been performed. The Board is unable to decide the Veteran's claim using the November 2020 opinion or the March 2021 opinion. As noted by the March 2021 examiner, a complete workup has not been performed on the Veteran to ascertain whether the muscle fatigue the Veteran experiences are symptoms of his service-connected condition or warrant a separate diagnosis. Therefore, remand for a new examination and etiological opinion is warranted. 3. Entitlement to service connection for headaches, to include as due to MUCMI and as secondary to service-connected heart condition, is remanded. The Board finds that a new VA examination and etiological opinion is warranted for the Veteran's claim. The Veteran contends that he has headaches that are due to a MUCMI, or in the alternative, is secondary to his service-connected heart condition. A headache DBQ provided by a VA examiner from a review of available records in conjunction with an interview with the Veteran was associated with the Veteran's claim file in June 2021. The June 2021 examiner noted that the Veteran's headaches started in 2020. She opined the Veteran's headaches were less likely than not related to his service-connected condition because she was unable to confirm a current chronic diagnosis for a chronic headache condition. She noted that the headache symptoms were self-report only and that records did not note medical evaluations, treatment, or diagnosis for a chronic headache condition. The Board finds the June 2021 opinion to be inadequate for adjudication purpose. First, a February 2016 VA examination indicates that the Veteran reported he has had headaches since shortly after the Gulf War, which occur every to two weeks. Thus, the examiner's negative opinion seems to be at least partially based on inaccurate factual premises and, at a minimum, the examiner did not adequately consider the Veteran's report of headache pain. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a medical opinion based on incorrect factual premises is not probative). Second, the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of a diagnosis or treatment without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board notes that a Veteran may be service connected for pain when it reaches the level of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Accordingly, remand for a new VA examination and etiological opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's muscle fatigue. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and conducting an examination of the Veteran, the examiner should respond to the following: (a.) Obtain a detailed history of the Veteran's muscle fatigue, to include any and all diagnosed conditions and symptomatology. (b.) Identify any diagnoses that pertain to the Veteran's muscle fatigue. In identifying any applicable diagnoses, the examiner should conduct all necessary testing, including a complete workup, to rule out any suspected diagnoses. If the Veteran does not have a diagnosable muscle fatigue condition, but has pain only, determine whether that pain causes functional loss. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (c.) Determine whether the Veteran's muscle fatigue is a symptom of his service-connected conditions, including heart, shoulder, knee conditions, and PTSD or is a separate diagnosis. (d.) If the Veteran does not have a diagnosable muscle fatigue condition, the examiner should also characterize the Veteran's condition as a (1) a disease with a clear and specific etiology and pathophysiology, (2) an undiagnosed illness, (3) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or (4) a diagnosable chronic multi-symptom illness with a partially explained etiology/pathophysiology. (e.) If the examiner determines that the Veteran's muscle fatigue has a clear and specific etiology, for each diagnosed condition, the examiner should state whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's muscle fatigue had its onset in or is related to service. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required 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. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's headaches. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and conducting an examination of the Veteran, the examiner should respond to the following: (a.) Obtain a detailed history of the Veteran's headaches, to include any and all diagnosed conditions and symptomatology. (b.) Identify any currently diagnosable condition associated with the Veteran's headaches. In identifying any applicable diagnoses, the examiner should conduct all necessary testing to rule out any suspected diagnoses. The examiner should characterize the Veteran's condition as a (1) a disease with a clear and specific etiology and pathophysiology, (2) an undiagnosed illness, (3) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or (4) a diagnosable chronic multi-symptom illness with a partially explained etiology/pathophysiology. (c.) If the Veteran does not have a diagnosable headache condition, but has pain only, determine whether that pain causes functional loss of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (d.) If the examiner determines that the Veteran's headaches have a clear and specific etiology, for each diagnosed condition, the examiner should state whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's headaches had its onset in or is related to service. (e.) For each diagnosed condition, the examiner should state whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's headaches were caused or aggravated by the Veteran's service-connected heart condition. AN OPINION AS TO BOTH CAUSATION AND AGGRAVATION IS REQUESTED. The examiner must specifically address the January 2020 VA opinion that noted the Veteran's headaches subsided since his heart surgery. (Continued on the next page) The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required 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. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.