Citation Nr: 21071263 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-41 889 DATE: November 30, 2021 ORDER 1. Entitlement to a 10 percent disability rating for hypertension is granted. 2. Entitlement to a 50 percent disability rating for bilateral hearing loss, effective April 30, 2018, is granted. FINDINGS OF FACT 1. The Veteran has a history of diastolic pressure predominantly 100 or more and requires continuous medication for blood pressure control. 2. Since April 30, 2018, but no earlier, the Veteran's bilateral hearing loss has resulted in Level VIII in each ear. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for hypertension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.104, Diagnostic Code (DC) 7101 (2020). 2. Since April 30, 2018, but no earlier, the criteria for a 50 percent rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.85, DC 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to January 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran and his wife appeared and testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Veteran was previously represented by the Military Order of the Purple Heart (MOPH). MOPH closed its Service Officer program on July 15, 2021, and requested that VA remove its recognition of MOPH as an organization that is authorized to prepare, present, and prosecute claims for VA benefits. The Veteran was notified that MOPH no longer represented him in August 2021 and was advised that he could obtain representation from accredited attorneys, claims agents, and other Veterans' service organizations. The process of obtaining such representation was explained in detail and the necessary forms were provided. To date, he has not elected another representative. Thus, the Veteran is no longer represented in this matter. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2020). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. 1. Entitlement to a 10 percent disability rating for hypertension is granted. The Veteran asserts that his hypertension is more disabling than reflected by the current noncompensable rating. He seeks an increased rating on the basis that he had a history of blood pressure readings showing diastolic pressure above 100 prior to the prescription of medication in 1993. He testified that he has continued to take medication to control his blood pressure and that the dosage of his medication has increased over time. See March 2021 Board Hearing Transcript p. 3. Hypertensive vascular disease warrants a 10 percent rating when diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or when an individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control; a 20 percent rating requires diastolic pressure of predominantly 110 or more or systolic pressure predominantly 200 or more; a 40 percent rating requires diastolic pressure of predominantly 120 or more; a 60 percent rating requires diastolic pressure of predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. The Veteran was afforded a VA examination in January 2018. At that time, the examiner indicated that continuous medication was used to control the Veteran's hypertension. Additionally, the examiner noted a history of diastolic pressure greater than 100 in 1992. Service treatment records further reflect that the Veteran had a history of diastolic pressure above 100 in early 1994. The Veteran was then prescribed Lisinopril in August 1994. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted for the service-connected hypertension due to a history of diastolic pressure of 100 or more, along with continuous medication for control of this condition. Indeed, multiple blood pressure readings prior to the prescription of Lisinopril reflect a diastolic pressure of 100 or more, which is indicative of what that pressure would be without the use of medication. As the Veteran's hypertension has been controlled by medication during the appeal period, it is not possible to determine his systolic or diastolic pressure without such treatment. However, the record confirms a history of diastolic pressure of 100 or more and, based upon the increase in dosage of the blood pressure medication, it is reasonable to infer that the Veteran's condition has worsened over time. As such, a 10 percent disability rating is granted for the period on appeal. A rating higher than 10 percent is not warranted during any period on appeal as the evidence does not indicate that the Veteran has experienced a diastolic pressure of predominantly 110 or more or systolic pressure predominantly 200 or more. 2. Entitlement to a 50 percent disability rating for bilateral hearing loss, effective April 30, 2018, is granted. The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and 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. See 38 C.F.R. § § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations 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. Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § § 4.86. 38 C.F.R. § § 4.85 (c). 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). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § § 4.85, Tables VI, VII. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that relevant to VA audiological examinations, 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. Id. At the March 2021 Board hearing, the Veteran testified that his hearing had worsened and that his tinnitus made it difficult for him to complete the audiological testing during previous VA examinations. He further indicated that his hearing ability fluctuated based on the presence of background noise and the daily severity of his tinnitus. His wife corroborated these reports of varying hearing acuity. At the December 2015 VA audiological examination, an audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 30 30 35 75 90 RIGHT 50 40 40 55 75 The puretone threshold average was 53 in the right ear and 58 in the left ear. Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. Using Table VI, these audiometry test results equated to Level I in the right ear and Level II in the left ear. 38 C.F.R. § § 4.85. Applying these levels to Table VII, the Veteran's hearing acuity equated to a noncompensable disability rating. 38 C.F.R. § § 4.85. At the April 2018 VA audiological examination, an audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 50 80 80 95 105 RIGHT 80 90 90 95 100 Speech audiometry revealed speech recognition ability of 60 percent in both ears using the Maryland CNC Speech Discrimination Test. However, this examination did not include modified performance enhancement intensity testing to evaluate speech discrimination, which, pursuant to the instructions on the document on which the results are recorded, is required due to the Veteran's severe level of hearing loss. However, the average puretone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 94 for the right ear and 90 for the left ear. The findings for both ears meet the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86, as the threshold at each of the measured thresholds was 55 decibels or higher. As such, the Board will apply the average of the Veteran's puretone thresholds to Table VIA, which results in a numerical designation of IX for the right ear and VIII for the left ear. Applying these numerical designations results in a 50 percent evaluation under Table VII. VA treatment records reflect complaints of, and some treatment for, bilateral hearing loss. However, the records do not contain any additional valid audiometric testing for rating purposes. After review of the evidence of record, the Board finds that a 50 percent disability rating effective April 30, 2018, but no earlier, is warranted. The evidence demonstrates that the VA audiological examinations referenced above were adequate for rating purposes, and that the severity of the Veteran's hearing loss was adequately assessed at these evaluations. The Board notes that a January 2018 VA examination did not include modified performance enhancement intensity testing to evaluate speech discrimination, which was required due to the Veteran's significant hearing loss, and the measured puretone thresholds did not reflect exceptional patterns of hearing impairment under 38 C.F.R. § 4.86. Additionally, a June 2018 VA failed to provide any audiometric results. The Board has considered the Veteran's lay statements and he is competent to describe the effects of his hearing loss on his daily functioning. However, the Veteran's hearing loss is not found to be to the extent that would result in a compensable rating pursuant to the VA disability rating schedule prior to April 30, 2018, or in excess of 50 percent, thereafter. Disability ratings for hearing loss are assigned under the rating schedule based upon hearing loss tested as prescribed by the regulations provided by Congress and are based upon a mechanical application of the rating schedule. They measure hearing acuity, which essentially is the problem the Veteran describes. See 38 C.F.R. § 4.85 (a); see also Lendenmann, 3 Vet. App. at 349. For the period on appeal prior to April 30, 2018, the weight of the audiometric testing has provided results consistent with a noncompensable rating. The Board finds that valid audiometric testing does not support a numerical designation greater than I for the right ear and a numerical designation greater than II for the left ear prior to April 30, 2018. Applying these findings to Table VII does not result in a compensable rating; as such, a compensable disability rating prior to April 30, 2018 is not warranted. 38 C.F.R. §§ 4.3, 4.85, 4.86, DC 6100. While audiometric testing results are varied following April 30, 2018, the Board will resolve the benefit of the doubt in favor of the Veteran and finds that a 50 percent rating, but no higher, is warranted from the date of the April 2018 VA examination. Specifically, the Veteran met the criteria for an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 as the threshold at each of the measured thresholds was 55 decibels or higher at the time of the April 2018 VA examination. Although subsequent testing revealed a variation in the severity of the Veteran's hearing loss, the Board notes his testimony regarding the fluctuation of his hearing acuity due to situational factors and the interference of his service-connected tinnitus. Based upon the foregoing, the Board finds that a 50 percent rating effective April 30, 2018, but no earlier, is warranted. (Continued on the next page) The Veteran has not raised any other issues with respect to the higher initial rating claim, nor have any other assertions been reasonably raised by the record. 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). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.